Exhibit 10.26
RESTRICTED STOCK AWARD
AGREEMENT
THIS RESTRICTED STOCK AWARD
AGREEMENT (“
Agreement ”), dated as of June 20, 2006 (“
Grant Date ”), is entered into between
NovaMed, Inc., a Delaware corporation (the “
Company ”), and
(“ Participant ”), an employee of NovaMed
Management Services, LLC, a Delaware limited liability company (
“Employer” ), a wholly owned subsidiary of the
Company.
RECITALS:
WHEREAS, the Company has adopted the NovaMed, Inc.
2005 Stock Incentive Plan (the “ Plan ”);
and
WHEREAS, pursuant to the Plan the Company desires to
grant to the Participant shares of its Common Stock, $0.01 par
value per share (“ Shares ”), subject to certain
restrictions set forth in this Agreement, effective as of the Grant
Date;
WHEREAS , the Committee has duly made all determinations
necessary or appropriate to the grants hereunder.
NOW, THEREFORE,
in consideration of the premises and
the mutual covenants set forth in this Agreement and for other good
and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1.
Definitions . Any capitalized term used in this
Agreement that is not defined in this Agreement will have the same
meaning as that given to it in the Plan.
2.
Grant of Restricted Stock .
(a)
Subject to the terms and conditions of the Plan, and the additional
terms and conditions set forth in this Agreement, the Company
hereby grants to Participant, as a matter of separate agreement and
not in lieu of salary or any other compensation for services,
( )
Shares (the “Restricted Stock” ).
(b)
Except as provided in Section 2(c) , until the
Participant incurs a Termination of Employment, (i) one-eighth
(1/8) of the Restricted Stock will vest on the six month
anniversary of the Grant Date and (ii) an additional
three-forty-eighths (3/48ths) of the Restricted Stock will vest on
each subsequent three month anniversary of the Grant Date, until
fully vested. Upon the Participant’s Termination of
Employment for any reason, all unvested shares of Restricted Stock
shall be cancelled and forfeited except as provided in
Section 2(c) .
(c)
Notwithstanding Section 2(b) , all of the Restricted
Stock shall become vested immediately upon a Change in Control if
the Participant is employed by the Company at the time of such
Change in Control.
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3.
Certificates . Shares of Restricted Stock awarded under
Section 2 will be evidenced by one or more certificates
bearing a legend referring to the terms, conditions and
restrictions applicable to such Restricted Stock. The Company
will retain physical possession of such certificates, and
Participant shall be required upon demand to execute and deliver
one or more stock powers to the Company, endorsed in blank,
relating to such shares or Restricted Stock for so long as such
shares remain unvested and subject to a risk of forfeiture.
Neither unvested shares of Restricted Stock, nor the right to vote
such shares and receive dividends thereon, may be sold, assigned,
transferred, exchanged, pledged, hypothecated or otherwise
encumbered; provided, however, that Participant may grant to
another person a revocable proxy to vote unvested shares of
Restricted Stock at a Company stockholder meeting.
4.
Rights .
Participant will have full voting rights with respect to shares of
Restricted Stock issued hereunder. Participant will be
entitled to receive dividends on shares of Restricted Stock if and
when dividends are payable on Shares to shareholders of record
after the Grant Date (unless and until such Restricted Stock is
forfeited). In the absence of an effective election under
Section 83(b) of the Code, dividends paid on unvested
shares of Restricted Stock will be treated as compensation and are
subject to withholding.
5.
Delivery and Withholding . Subject to satisfaction of any tax
withholding obligation as described below, shares of Restricted
Stock that are no longer subject to forfeiture will be transferred
and delivered to Participant as soon as practicable after the date
on which they vest in accordance with Section 2(b)
. Upon the vesting of shares of Restricted Stock, the
prohibition against the sale or transfer of such shares will be
lifted and such shares may be treated as any other Shares, subject
to any restrictions on transfer that may be applicable under
federal securities laws. In the absence of an effective
election under Section 83(b) of the Code, the payment to
Participant and transfer of such shares of Restricted Stock upon
vesting will be subject to withholding by the Company of amounts
sufficient to cover withholding obligations applicable to such
payment and transfer. In the event that any required tax
withholding upon the settlement of such Restricted Stock exceeds
Participant’s regular compensation available to satisfy such
withholding, Participant agrees to remit to the Company, as a
condition of settlement of the Restricted Stock, such additional
amounts as are necessary to satisfy such required
withholding. Any withholding obligation may be settled either
in cash or with Shares, including by withholding Shares that are
otherwise deliverable hereunder upon vesting of Restricted
Stock.
6.
Plan .
Participant hereby acknowledges receipt of a copy of the
Plan. Notwithstanding any other provision of this Agreement,
the Restricted Stock is granted pursuant to the Plan, as in effect
on the date of the Agreement, and is subject to the terms and
conditions of the Plan, as the same may be amended from time to
time; provided, however, that except as otherwise provided by the
Plan no amendment to either the Plan or this Agreement will deprive
the Participant, without the Participant’s consent, of any
shares of Restricted Stock or of Participant’s rights under
this Agreement. The interpretation and construction by the
Committee of the Plan, this Agreement, the Restricted Stock, and
such rules and regulations as may be adopted by the Committee
for the purpose of administering the Plan, will be final and
binding upon the Participant.
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7.
No Employment Rights . No provision of this Agreement or of the
Restricted Stock will give Participant any right to continue in the
employ of the Company or any of its Affiliates, create any
inference as to the length of employment of the Participant, affect
the right of the Company or its Affiliates to terminate the
employment of the Participant, with or without Cause, or give
Participant any right to participate in any employee welfare or
benefit plan or other program (other than the Plan) of the Company
or any of its Affiliates.
8.
Changes in Company’s Capital or Organizational
Structure . The
existence of the Restricted Stock shall not affect in any way the
right or authority of the Company or its shareholders to make or
authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company’s capital
structure or its business, or any merger or consolidation of the
Company, or any issue of preferred Shares ahead of or affecting the
Shares or the rights thereof, or the dissolution or liquidation of
the Company, or any sale or transfer of all or any part of its
assets or business, or any other act or proceeding, whether of a
similar character or otherwise.
9.
Delays . In
accordance with the terms of the Plan, the Company shall have the
right to suspend or delay any time period prescribed in this
Agreement or in the Plan for any action if the Committee shall
determine that the action may constitute a violation of any law or
result in any liability under any law to the Company, an Affiliate
or a shareholder in the Company until such time as the action
required or permitted will not constitute a violation of law or
result in liability to the Company, an Affiliate or a shareholder
of the Company.
10.
Governing Law; Construction . This Agreement and the Restricted Stock
will be governed by, and construed and enforced in accordance with,
the laws of the State of Illinois without regard to conflicts of
law principles. Common nouns and pronouns shall be deemed to
refer to the masculine, feminine, neuter, singular and plural, as
the context requires.
11.
Entire Agreement . This Agreement, together with the Plan
and any other agreements incorporated herein by reference,
constitutes the entire obligation of the parties with respect to
the subject matter of this Agreement and supersedes any prior
written or oral expressions of intent or understanding with respect
to such subject matter.
12.
Amendment .
Any amendment to this Agreement must be in writing and signed by
the Company.
13.
Waiver; Cumulative Rights . The failure or delay of either party to
require performance by the other party of any provision of this
Agreement will not affect its right to require performance of such
provision unless and until such performance has been waived in
writing. Each right under this Agreement is cumulative and
may be exercised in part or in whole from time to time.
14.
Counterparts . This Agreement may be signed in two
counterparts, each of which will be an original, but both of which
will constitute one and the same instrument.
15.
Notices .
Any notices required or permitted under this Agreement must be in
writing and may be delivered personally or by mail, postage
prepaid, addressed to (a) the Company at 980
3
North Michigan Avenue,
Suite 1620, Chicago, Illinois 60611, Attention: General
Counsel and (b) the Participant at the Participant’s
address as shown on the Company’s payroll records, or to such
other address as the Participant, by notice to the Company, may
designate in writing from time to time.
16.
Headings .
The headings in this Agreement are for reference purposes only and
will not affect the meaning or interpretation of this
Agreement.
17.
Severability . If any provision of this Agreement is
for any reason held to be invalid or unenforceable, such invalidity
or unenforceability will not affect any other provision of this
Agreement, and this Agreement will be construed as if such invalid
or unenforceable provision were omitted.
18.
No Strict Construction . The language used in this Agreement
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