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


 


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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 will be deemed to be the language chosen by the parties to express
their mutual intent, and no rule of strict construction will be applied
against any party.


 


19.          Remedies. 
Each of the parties to this Agreement will be entitled to enforce its
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement, and to exercise all other rights
existing in its favor.  The Participant
agrees and acknowledges that money damages will not be an adequate remedy for
any breach of the provisions of this Agreement and that the Company will be
entitled to specific performance and injunctive relief in order to enforce or
prevent any violations of the provisions of this Agreement.


 


20.          Successors
and Assigns.  This Agreement will inure to the benefit of
and be binding upon each successor and assign of the Company.  All obligations imposed upon the Participant
or a representative, and all rights granted to the Company under this
Agreement, will be binding upon the Participant’s or the representative’s
heirs, legal representatives and successors.


 


21.          Tax
Consequences.             The Participant agrees to determine
and be responsible for all tax consequences to the Participant with respect to
the Restricted Stock.


 


22.          Restrictive Covenants.
By signing this Agreement, Participant agrees, and the Company agrees, to be
bound by the terms of the various covenants (the “Restrictive Covenants”)
contained in Annex A hereto. 
Nothing contained in this Agreement shall limit the Company’s or
Employer’s right to protect its legitimate business interests, including, but
not limited to, its trade secrets or confidential information, or to enforce
any agreements with its employees, former employees or third parties,
including, without limitation any employment agreement between Employer and
Participant.  In addition, nothing
contained herein shall be construed as prohibiting the Company or Employer from
pursuing any other remedies available to it for a breach or threatened breach
of any of the Restrictive Covenants, including the recovery of any damages
which it is able to prove.


 


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IN
WITNESS WHEREOF,
the Company and the Participant have executed this Agreement as of the date
first written above.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  NOVAMED, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [name]

  



 


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Annex A


 


RESTRICTIVE
COVENANTS


 


1. Participant’s
Acknowledgment.  Participant acknowledges that:


 


(a)           The Company is engaged in the
business of:  (i) owning, operating
and/or managing ambulatory surgery centers and other outpatient surgical facilities,
optical dispensaries, wholesale optical laboratories, an optical supplies and
equipment purchasing organization, and a marketing services and products
company that provides marketing services and products to eye care providers as
well as marketing and lead-tracking software, websites, call center services
and other marketing services to health care providers and manufacturers; and (ii) providing
comprehensive services to eye care providers and businesses ancillary thereto,
including, without limitation, providing financial, administrative, information
technology, marketing and managed care services and ophthalmic surgical
equipment to ophthalmic and optometric providers (collectively, the “Business”);


 


(b)           the Company is and will be engaged in
the Business during the Participant’s employment with the Company and
thereafter;


 


(c)           Participant is one of a limited
number of persons who will be developing the Business;


 


(d)           Participant will occupy a position of
trust and confidence with the Company after the date of this Agreement, and
during such period and Participant’s employment, Participant will become
familiar with the Company’s trade secrets and with other proprietary and
confidential information concerning the Company and the Business;


 


(e)           the agreements and covenants
contained in this Annex A are
essential to protect the Company and the goodwill of the Business and are a
condition precedent to the Company entering into this Agreement;


 


(f)            Participant’s employment with the
Company has special, unique and extraordinary value to the Company and the
Company would be irreparably damaged if Participant were to provide services to
any person or entity in violation of the provisions of this Agreement;


 


(g)           Participant has means to support
himself or herself and his or her dependents other than by engaging in the
Business, or a business similar to the Business, and the provisions of this Annex A will not impair such ability; and


 


(h)           for purposes of this Annex A, the term “Company” shall include the Company, the
Employer and any of their respective subsidiaries and affiliates.


 


2. Non-Compete.  Participant hereby agrees that for a period
commencing on the date hereof and ending on the date of termination of his or
her employment with the Company (the “Termination Date”),
and thereafter, through the later of (a) the
period ending on the first anniversary of the Termination Date or (b) as
applicable, the period ending at the conclusion of 


 


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the Severance Period as defined in the Participant’s
employment agreement (collectively, the
“Restrictive Period”), Participant
shall not, directly or indirectly, as employee, agent, consultant, stockholder,
director, co-partner or in any other individual or representative capacity,
own, operate, manage, control, engage in, invest in or participate in any
manner in, act as a consultant or advisor to, render services for (alone or in
association with any person, firm, corporation or entity), or otherwise assist
any person or entity (other than the Company) that engages in or owns, invests
in, operates, manages or controls any venture or enterprise that directly or
indirectly engages or proposes to engage in any element of the Business
anywhere within a 100-mile radius of the Chicago metropolitan area or within a
100-mile radius of any area (or in the event such area is a major city, the
metropolitan area relating to such city) in which the Company on the
Termination Date engages in any element of the Business (the “Territory”); provided, however, that nothing contained
herein shall be construed to prevent Participant from investing in the stock of
any competing corporation listed on a national securities exchange or traded in
the over-the-counter market, but only if Participant is not involved in the
business of said corporation and if Participant and his or her associates (as
such term is defined in Regulation 14(A) promulgated under the Securities
Exchange Act of 1934, as in effect on the date hereof), collectively, do not
own more than an aggregate of 3% of the stock of such corporation.  With respect to the Territory, Participant
specifically acknowledges that the Company intends to expand the Business into
and throughout the United States.


 


3. Interference
with Relationships.  Without limiting the generality of the
provisions of Section 2 hereof, Participant
hereby agrees that, during the Restrictive Period, Participant will not,
directly or indirectly, solicit or encourage, or participate as employee,
agent, consultant, stockholder, director, partner or in any other individual or
representative capacity, in any business which solicits or encourages (a) any
person, firm, corporation or other entity which has executed, or proposes to
execute, a management services agreement or other services agreement with the
Company at any time during the term of this Agreement, or from any successor in
interest to any such person, firm, corporation or other entity, for the purpose
of securing business or contracts related to any element of the Business, or (b) any
present or future customer or patient of the Company or any of its affiliated
practices or facilities to terminate or otherwise alter his, her or its
relationship with the Company or such affiliated practice or facility;
provided, however, that nothing contained herein shall be construed to prohibit
or restrict Participant from soliciting business from any such parties on
behalf of the Company in performance of his or her duties as an employee of the
Company, and, as applicable, duties required under and as specifically
contemplated by Section 1.2 of his or her
employment agreement with the Company. 
In addition, at all times from and after the Termination Date,
Participant shall not contact or communicate in any manner with any of the Company’s
suppliers or vendors, or any other third party providing services to the
Company, regarding the Company or any Company-related matter (which suppliers,
vendors or third party service providers will include, without limitation, any
third party with whom the Company was, during the term of Participant’s
employment with the Company, contemplating engaging, or negotiating with, for
the future provision of products or services).


 


4. Nonsolicitation.  Other than in the performance of his or her
duties hereunder, during the Restrictive Period, Participant shall not,
directly or indirectly, as employee, agent, consultant, stockholder, director,
co-partner or in any other individual or representative capacity, employ or 


 


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engage,
recruit or solicit for employment or engagement, any person who is or becomes
employed or engaged by the Company or any of its affiliated practices during
the Restrictive Period, or otherwise seek to influence or alter any such person’s
relationship with the Company.


 


5. Confidential
Information.  Other than in the performance of his or her
duties hereunder, during the Restrictive Period and thereafter, Participant
shall keep secret and retain in strictest confidence, and shall not, without
the prior written consent of the Company, furnish, make available or disclose
to any third party or use for the benefit of himself or herself or any third
party, any Confidential Information.  As
used in this Agreement, “Confidential Information”
shall mean any information relating to the business or affairs of the Company
or the Business, including but not limited to any technical or non-technical
data, formulae, compilations, programs, devices, methods, techniques, designs,
processes, procedures, improvements, models, manuals, financial data,
acquisition strategies and information, information relating to operating
procedures and marketing strategies, and any other proprietary information used
by the Company in connection with the Business, irrespective of its form;
provided, however, that Confidential Information shall not include any
information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Participant.  Participant acknowledges that the Confidential
Information is vital, sensitive, confidential and proprietary to the Company.


 


6.  Inventions
and Discoveries.


 


(a) Participant
understands and agrees that all inventions, discoveries, ideas, improvements,
whether patentable, copyrightable or not, pertaining to the Business of the
Company or relating to the Company’s actual or demonstrably anticipated
research, development or inventions (collectively, “Inventions
and Discoveries”) that result from any work performed by Participant
solely or jointly with others for the Company which Participant, solely or
jointly with others, conceives, develops, or reduces to practice during the
course of Participant’s employment with the Company, are the sole and exclusive
property of the Company.  Participant
will promptly disclose all such matters to the Company and will assist the
Company in obtaining legal protection for Inventions and Discoveries.  Participant hereby agrees on behalf of
himself or herself, his or her executors, legal representatives and assignees
that Participant will assign, transfer and convey to the Company, its
successors and assigns the Inventions and Discoveries.


 


(b) THE
COMPANY AND PARTICIPANT ACKNOWLEDGE AND AGREE THAT SECTION 6(a) SHALL
NOT APPLY TO AN INVENTION OF PARTICIPANT FOR WHICH NO EQUIPMENT, SUPPLIES,
FACILITY OR TRADE SECRET INFORMATION OF THE COMPANY WAS USED AND WHICH WAS
DEVELOPED ENTIRELY ON PARTICIPANT’S OWN TIME, UNLESS (A) THE INVENTION
RELATED (I) TO THE BUSINESS OF THE COMPANY OR (II) TO THE COMPANY’S
ACTUAL OR DEMONSTRABLY ANTICIPATED RESEARCH OR DEVELOPMENT, OR (B) THE
INVENTION RESULTS FROM ANY WORK PERFORMED BY PARTICIPANT FOR THE COMPANY.  PARTICIPANT AND THE COMPANY FURTHER
ACKNOWLEDGE AND AGREE THAT SECTION 6(a) SHALL
NOT APPLY TO ANY INVENTIONS OR WORK PRODUCT DEVELOPED OR VESTED BY PARTICIPANT
PRIOR TO THE EFFECTIVE DATE.


 


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(c) PARTICIPANT
ACKNOWLEDGES THAT PARTICIPANT HAS READ THIS SECTION 6
AND FULLY UNDERSTANDS THE LIMITATIONS WHICH IT IMPOSES UPON HIM OR
HER AND HAS RECEIVED A DUPLICATE COPY OF THIS AGREEMENT FOR HIS OR HER RECORDS.


 


7. Blue-Pencil.  If any court of competent jurisdiction shall
at any time deem the term of this Agreement or any particular Restrictive
Covenant (as defined) too lengthy or the Territory too extensive, the other
provisions of this Annex A shall
nevertheless stand, the Restrictive Period herein shall be deemed to be the
longest period permissible by law under the circumstances and the Territory
herein shall be deemed to comprise the largest territory permissible by law
under the circumstances.  The court in
each case shall reduce the time period and/or Territory to permissible duration
or size.


 


8. Remedies.  Participant acknowledges and agrees that the
covenants set forth in this Annex A (collectively,
the “Restrictive Covenants”) are reasonable
and necessary for the protection of the Company’s business interests, that
irreparable injury will result to the Company if Participant breaches any of
the terms of said Restrictive Covenants, and that in the event of Participant’s
actual or threatened breach of any such Restrictive Covenants, the Company will
have no adequate remedy at law. 
Participant accordingly agrees that in the event of any actual or
threatened breach by him or her of any of the Restrictive Covenants, the
Company shall be entitled to immediate temporary injunctive and other equitable
relief, without bond and without the necessity of showing actual monetary
damages, subject to hearing as soon thereafter as possible.  Nothing contained herein shall be construed
as prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breach, including the recovery of any damages which
it is able to prove.


 


9. Covenant
Not to Disparage.  During the Restrictive Period and thereafter,
Participant shall not disparage, denigrate or derogate in any way, directly or
indirectly, any of the Company, its agents, officers, directors, employees,
parent, subsidiaries, affiliates, affiliated practices, affiliated doctors,
representatives, attorneys, executors, administrators, successors and assigns
(collectively, the “Protected Parties”),
nor shall Participant disparage, denigrate or derogate in any way, directly or
indirectly, his or her experience with any Protected Party, or any actions or
decisions made by any Protected Party.


 


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