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EXHIBIT 10.4
SYMBION STOCK INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
GRANT NUMBER N <<OPTION NUMBER>>
THIS AGREEMENT is made and entered into by and between Symbion,
Inc.
(the "Company") and <<PARTICIPANT>> (the
"Participant"), in connection with the
grant of an Option under the Symbion Stock Incentive Plan (the
"Plan") on
<<OPTION DATE>>.
The Participant is an employee of the Company or an Affiliate and
is
eligible to receive this Option under the terms of the Plan, which
was amended
and restated in an action that was approved by the stockholders of
the Company
on March 28, 2002, for the purposes stated in Article II of the
Plan. The
parties intend that this grant be treated as a Nonqualified Option
under the
Plan, subject to the terms stated in this Agreement.
1. Grant of Option. Subject to the terms and conditions set
forth
herein, the Participant is granted a Nonqualified Option to
purchase from the
Company <<SHARES>> shares of Stock at a price of
<<PRICE>> 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 <<EXPIRATION
DATE>>, 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.
<TABLE>
<CAPTION>
On and After
Shares Subject to Exercise
------------
--------------------------
<S>
<C>
<<VEST DATE 1>>
<<SHARE 1>> SHARES
<<VEST DATE 2>>
ADDITIONAL <<SHARE 2>> SHARES
<<VEST DATE 3>>
ADDITIONAL <<SHARE 3>> SHARES
<<VEST DATE 4>>
ADDITIONAL <<SHARE 4>> SHARES
</TABLE>
2. Method of Exercise. The exercise of this Option is subject to
the
Participant's execution of a written stockholders agreement that
generally
applies to some or all of the stockholders 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 10. 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
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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. In general, 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; provided, however,
that the
Option 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.
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 on which the Stock may then be listed.
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. The right to exercise this Option will
expire
on the date specified in Paragraph 1, which is seven years after
the date of
grant, provided that this Option will expire earlier 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 such
disability 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 death if the Participant was
entitled to
exercise it on the date of death, without regard to the schedule in
Paragraph 1.
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.
2
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7. Committee Authority. Any question concerning the interpretation
of
this Agreement, any a
