Exhibit 10.11
EMPLOYEE CONTRIBUTION
AGREEMENT
THIS EMPLOYEE CONTRIBUTION AGREEMENT
(this “ Agreement ”) is made as of
August , 2007 between Symbion Holdings
Corporation, a Delaware corporation (the “ Company
”), and the individual listed on the signature
pages hereof (“ Employee ”).
Capitalized terms used but not otherwise defined herein have the
meanings ascribed to those terms in Section 3 below.
This Agreement is entered into in connection with the Symbion
Holdings Corporation Compensation Equity Participation Plan
(“ Compensation Plan ”).
WHEREAS, pursuant to the terms of
the Agreement and Plan of Merger dated as of April 24, 2007
(the “ Merger Agreement ”) by and among
Symbion, Inc., a Delaware corporation, Symbol Acquisition,
L.L.C., a Delaware limited liability company, and Symbol Merger
Sub, Inc., a Delaware corporation, Symbol Merger
Sub, Inc. will be merged with and into Symbion, Inc.,
with Symbion, Inc. as the surviving corporation (the “
Merger ”);
WHEREAS, pursuant to the
Compensation Plan, Employee desires to make an investment in the
Company in the form of a contribution of the number of shares of
common stock of Symbion, Inc. that are owned by Employee and
listed opposite his or her name on Exhibit A hereto
under the heading “Contributed Shares” (such shares in
respect of such employee, his or her “ Contributed
Shares ”);
WHEREAS, the Employee has agreed
pursuant to Section 1(b) of this Agreement to become a
party to and bound as a Shareholder (as defined therein) by the
Shareholders Agreement of Symbion Holdings Corporation dated as of
the date hereof, which agreement is attached as
Exhibit B hereto (the “ Shareholder
Agreement ”); and
WHEREAS, the contribution of
Employee that is recited herein, along with the property
contributed by the parties to the Shareholders Agreement, will
cause the contributors in the aggregate to have over 80% of the
Company in a transaction intended to qualify as a Section 351
transaction in which gain is not recognized with respect to the
contributed property;
NOW, THEREFORE, in consideration of
the mutual promises made in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto (each, a “
Party ” and collectively, the “ Parties
”), intending to be legally bound hereby, agree as
follows:
SECTION 1
. Purchase And Sale Of
Employee Securities.
(a)
Capital Contribution and Issuance of Employee Securities
. Subject to the terms and conditions of this Agreement,
Employee hereby makes a capital contribution to the Company
immediately prior to the Effective Time (as defined in the Merger
Agreement) of his or her Contributed Shares which have a value that
is equal to the amount that is set forth opposite his or her name
on Exhibit A hereto under the heading “Capital
Contribution” (such contributed value for each such Employee,
his or her “ Capital Contribution ”). In
consideration of the Capital Contribution of Employee, the Company
will issue a number of shares of common stock of the Company, each
with a par value of $0.01 per share (such shares, the “
Shares ”), to Employee that is equal to the quotient
(rounded to the nearest whole number of) of (x) his or her
Capital Contribution divided by (y) $10, subject to the
rights and obligations set forth in the Shareholders
Agreement.
(b)
The Employee hereby agrees to become a party and subject to, and
bound as a Shareholder (as defined in the Shareholders Agreement)
by, the Shareholders Agreement as of the Effective Time.
Consequently and for the sake of clarity, the Employee’s
signature on a counterpart of this Agreement shall be deemed to be
one and the same as a signature on a counterpart of the
Shareholders Agreement.
SECTION 2
. Representation and
Warranties of Employee. Employee represents and warrants to the Company
as follows:
(a)
The investment in the Company by Employee pursuant to this
Agreement has been made by the Employee for his or her own account
and not with a view to, or the intention of, distribution thereof
in violation of the Securities Act of 1933, or the rules and
regulations promulgated under that Act, as amended (the “
Securities Act ”), or any applicable state securities
laws, and such Employee shall not dispose of, or otherwise Transfer
(as defined in the Shareholders Agreement) all or any part of his
or her Shares, except in compliance with the Securities Act, any
applicable state securities laws and the Shareholders
Agreement.
(b)
Employee is an employee of the Company or an Affiliate thereof, and
he or she is sophisticated in financial matters and is able to
evaluate the risks and benefits of the investment in his or her
Shares.
(c)
Employee is able to bear the economic risk of investment in his or
her Shares for an indefinite period of time (including the possible
full loss thereof) and is aware that Transfer of all or any part of
his or her Shares may not be possible because (A) such
Transfer is subject to the contractual restrictions on Transfer set
forth in the Shareholders Agreement and (B) such Shares have
not been registered under the Securities Act or any applicable
state securities laws and, therefore, cannot be sold unless in
compliance with the Shareholders Agreement and subsequently
registered under the Securities Act and such applicable state
securities laws or an exemption from such registration is
available.
2
(d)
Employee has had an opportunity to ask questions and receive
answers concerning the terms and conditions of his or her
investment in the Company, the Shares issued to him or her
hereunder and the terms and conditions of this Agreement and the
Shareholders Agreement and has had full access to such other
information as he or she has requested concerning the Company and
its assets, liabilities, financial condition, results of operations
and prospects and this investment opportunity.
(e)
Employee holds good, valid and marketable record and beneficial
title to all of his or her Contributed Shares to be contributed to
the Company by Employee to the Company pursuant to this Agreement,
and good and valid title to such Contributed Shares will pass to
the Company by virtue of this Agreement.
(f)
Each of this Agreement and the Shareholders Agreement constitutes a
legal, valid and bind
