** **

**UNITEDSTATESSECURITIES AND EXCHANGE COMMISSION**

**Washington, D.C. 20549**

** **

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**Form 10-K/A**

**(Amendment No. 1)**

** **

| **(Mark One)** | ** **                                                                                          |
|----------------|-----------------------------------------------------------------------------------------------------|
| ** **     | ** **                                                                                          |
| **x**          | **ANNUAL REPORT PURSUANT TO  SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934** |

** **

**For the Fiscal Year Ended December 31, 2008**

** **

**or**

| **o** | **TRANSITION REPORT PURSUANT TO  SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934** |
|-------|---------------------------------------------------------------------------------------------------------|

** **

**For the transition period from             to            **

** **

**Commission file number:  000-50574**

** **

**Symbion, Inc.**

(Exactname of registrant as specified in its charter)

 

| **Delaware**                                                     | ** ** | **62-1625480**                         |
|------------------------------------------------------------------|------------|----------------------------------------|
| (State  or other jurisdiction of  incorporation or organization) |       | (I.R.S.  Employer  Identification No.) |

 

**40 Burton Hills Boulevard, Suite 500**

**Nashville, Tennessee 37215**

(Addressof principal executive offices and zip code)

 

**(615) 234-5900**

**(Registrant’stelephone number, including area code)**

** **

**SecuritiesRegistered Pursuant to Section 12(b) of the Act:  None**

**SecuritiesRegistered Pursuant to Section 12(g) of the Act:  None**

 

Indicate by check mark ifthe registrant is a well-known seasoned issuer, as defined in Rule 405 ofthe Securities Act.  Yes o  No x

 

Indicate by check mark ifthe registrant is not required to file reports pursuant to Section 13 or Section 15(d) ofthe Exchange Act.  Yes o No x

 

Indicate by check markwhether the registrant (1) has filed all reports required to be filed by Section 13or 15(d) of the Securities Exchange Act of 1934 during the preceding12 months (or for such shorter period that the registrant was required tofile such reports), and (2) has been subject to such filing requirementsfor the past 90 days.  Yes x  No o

 

Indicate by check mark whether theregistrant has submitted electronically and posted on its corporate Web site,if any, every Interactive Data File required to be submitted and postedpursuant to Rule 405 of Regulation S-T (§ 229.405 of this chapter) during thepreceeding 12 months (or for such shorter period that the registrant wasrequired to submit and post such files). Yes o No o

 

Indicate by check mark ifdisclosure of delinquent filers pursuant to Item 405 ofRegulation S-K is not contained herein, and will not be contained, to thebest of registrant’s knowledge, in definitive proxy or information statementsincorporated by reference in Part III of this Form 10-K or any amendmentto this Form 10-K.  x

 

Indicate by check markwhether the registrant is a large accelerated filer, an accelerated filer, anon-accelerated filer, or a smaller reporting company. See the definitions of “largeaccelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2of the Exchange Act.

 

| Large  accelerated filer o |   | Accelerated  filer o         |
|---------------------------------|--------|-----------------------------------|
|                            |   |                              |
| Non-accelerated  filer x   |   | Smaller  reporting company o |

 

Indicate by check markwhether the registrant is a shell company (as defined in Rule 12b-2 of theExchange Act).  Yes o  No x

 

None of the registrant’scommon stock is held by non-affiliates.

 

As of March 20,2009, 1,000 shares of the registrant’s common stock were outstanding.

 

 

 

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**EXPLANATORYNOTE**

 

Symbion, Inc. (the “Company”)is filing this Amendment No. 1 to its Annual Report on Form 10-K forthe year ended December 31, 2008, filed with the Securities and ExchangeCommission on March 31, 2009 (the “Form 10-K”), for the purpose offiling a full and complete copy of the agreements listed as Exhibits 10.3 and10.13 to the Form 10-K in the form such agreements were executed anddelivered by the respective parties thereto.

 

This amendment amends andrestates in its entirety Item 15 and the Exhibit Index of the Form 10-K.  In addition to Exhibits 10.3 and 10.13, theCompany is including as exhibits currently dated certifications of the Company’sChief Executive Officer and Chief Financial Officer.  This amendment should be read in conjunctionwith the original Form 10-K, continues to speak as of the date of the Form 10-K,and does not modify or update disclosures in the Form 10-K except as notedabove.  Accordingly, this amendment doesnot reflect events occurring after the filing of the Form 10-K or modifyor update any related disclosures.

 

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** **

**PART IV**

** **

**Item 15.  *Exhibitsand Financial Statement Schedules***

 

**(a) The following documents arefiled as part of this report:**

 

***(1)******        ******ConsolidatedFinancial Statements***

 

The consolidatedfinancial statements required to be included in Part II, Item 8, areindexed on Page F-1 and submitted as a separate section of this report.

 

***(2)******        ******ConsolidatedFinancial Statement Schedules***

 

All schedules are omittedbecause they are not applicable or not required, or because the requiredinformation is included in the consolidated financial statements or notes inthis report.

 

***(3)******        ******Exhibits***:

 
| **No.** | ** ** | **Description**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|---------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 2       |       | Agreement and Plan of  Merger, dated as of April 24, 2007, by and among Symbol Acquisition,  L.L.C., Symbol Merger Sub, Inc. and Symbion, Inc. (a)                                                                                                                                                                                                                                                                                                                                                                                                                         |
| 3.1     |       | Amended Certificate of  Incorporation of Symbion, Inc. (b)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| 3.2     |       | Amended and Restated  Bylaws of Symbion, Inc. (b)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| 4.1     |       | Indenture, dated as of  June 3, 2008, among Symbion, Inc., the Guarantors named therein and  U.S. Bank National Association, as Trustee (b)                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| 4.2     |       | Form of Notes  (included in Exhibit 4.1)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| 4.3     |       | Registration Rights  Agreement, dated as of June 3, 2007, among Symbion, Inc., the  subsidiaries of Symbion, Inc. party thereto as guarantors, and Merrill,  Lynch, Pierce, Fenner & Smith Incorporated, Banc of America  Securities LLC and Greenwich Capital Markets, Inc. (b)                                                                                                                                                                                                                                                                        |
| 4.4     |       | First Supplemental  Indenture, dated as of September 18, 2008 among Symbion, Inc., the  Guarantors named therein and U.S. Bank National Association, as Trustee (b)                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.1    |       | Employment Agreement,  dated August 23, 2007, between Symbion, Inc. and Richard E.  Francis, Jr. (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
| 10.2    |       | Employment Agreement,  dated August 23, 2007, between Symbion, Inc. and Clifford G. Adlerz  (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| 10.3    |       | Credit Agreement, dated  as of August 23, 2007, among Symbol Holdings Corporation, Symbol Merger  Sub, Inc., the Lenders party thereto from time to time, Merrill Lynch  Capital Corporation as Administrative Agent and Collateral Agent, Bank of  America, N.A. as Syndication Agent, The Royal Bank of Scotland PLC and  Fifth Third Bank as Co-Documentation Agents, and Merrill  Lynch & Co., Merrill, Lynch, Pierce, Fenner & Smith  Incorporated and Banc of America Securities LLC as Joint Lead Arrangers  and Joint Lead Bookrunners |
| 10.4    |       | Lease Agreement, dated  June 26, 2001, between Burton Hills IV Partners and Symbion, Inc.  (c)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
| 10.5    |       | First Amendment to  Lease Agreement, dated February 9, 2004, between Burton Hills IV  Partners and Symbion, Inc. (d)                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| 10.6    |       | Symbion Holdings  Corporation 2007 Equity Incentive Plan (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| 10.7    |       | Symbion, Inc.  Executive Change in Control Severance Plan (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| 10.8    |       | Symbion Holdings  Corporation Compensatory Equity Participation Plan (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
| 10.9    |       | Shareholders Agreement,  dated as of August 23, 2007, among Symbion Holdings Corporation and the  stockholders of Symbion Holdings Corporation and other persons named therein  (b)                                                                                                                                                                                                                                                                                                                                                                                                  |
| 10.10   |       | Advisory Services and  Monitoring Agreement, dated as of August 23, 2007, among  Symbion, Inc., Symbion Holdings Corporation and Crestview Advisors,  L.L.C. (b)                                                                                                                                                                                                                                                                                                                                                                                                                |
| 10.11   |       | Form of Employee  Contribution Agreement (b)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
| 10.12   |       | Symbion, Inc.  Supplemental Executive Retirement Plan (e) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |
| 10.13   |       | Management Rights  Purchase Agreement, dated as of July 27, 2005, by and among Parthenon  Management Partners, LLC, Andrew A. Brooks, M.D., Randhir S. Tuli and  SymbionARC Management Services, Inc.                                                                                                                                                                                                                                                                                                                                                                      |
| 10.14   |       | Interest Rate Swap  Agreement with counterparty, Merrill Lynch Capital Services, Inc. (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| 21      |       | Subsidiaries of  Registrant (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| 31.1    |       | Certification of Chief  Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002 (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 31.2    |       | Certification of Chief  Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002 (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 31.3    |       | Certification of Chief  Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| 31.4    |       | Certification of Chief  Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |

 

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| 32.1 |   | Certification of Chief  Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of  2002 (h) |
|------|--------|---------------------------------------------------------------------------------------------------------------|
| 32.2 |   | Certification of Chief  Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of  2002 (h) |

 

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(a)          Incorporated by reference to exhibitsfiled with the Registrant’s Current Report on Form 8-K filed April 24,2007 (File No. 000-50574)

(b)         Incorporated by reference to exhibitsfiled with the Registrant’s Registration Statement on Form S-4(Registration No. 333-153678)

(c)          Incorporated by reference to exhibitsfiled with the Registrant’s Registration Statement on Form S-1(Registration No. 333-89554)

(d)         Incorporated by reference to exhibitsfiled with the Registrant’s Annual Report on Form 10-K for the year ended December 31,2003 (File No. 000-50574)

(e)          Incorporated by reference to exhibitsfiled with the Registrant’s Quarterly Report on Form 10-Q for the quarterended March 31, 2005 (File No. 000-50574)

(f)            Incorporated by reference to exhibitsfiled with the Registrant’s Current Report on Form 8-K filed August 2,2005 (File No. 000-50574)

(g)         Compensation plan or arrangement

(h)         Previously filed as an exhibit to the Registrant’sAnnual Report on Form 10-K for the year ended December 31, 2008 filedMarch 31, 2009 (File No. 000-50574)

 

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** **

**SIGNATURES**

 

Pursuant to therequirements of Section 13 or 15(d) of the Securities Exchange Act of1934, the Registrant has duly caused this report to be signed on its behalf bythe undersigned, thereunto duly authorized.

 

 
|                       | SYMBION, INC. |
|----------------------------|--------------------|
|                       |               |
|                       | By:                | /s/ Richard E.  Francis, Jr. |
|                       |               | Richard E.  Francis, Jr. |
|                       |               | *Chairman  of the Board and   Chief Executive Officer* |
| Dated: June 17,  2009 |               | * * |

 

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**Exhibit Index**

 
| **No.** | ** ** | **Description**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
|---------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| 2       |       | Agreement and Plan of  Merger, dated as of April 24, 2007, by and among Symbol Acquisition,  L.L.C., Symbol Merger Sub, Inc. and Symbion, Inc. (a)                                                                                                                                                                                                                                                                                                                                                                                                                         |
| 3.1     |       | Amended Certificate of  Incorporation of Symbion, Inc. (b)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| 3.2     |       | Amended and Restated  Bylaws of Symbion, Inc. (b)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| 4.1     |       | Indenture, dated as of  June 3, 2008, among Symbion, Inc., the Guarantors named therein and  U.S. Bank National Association, as Trustee (b)                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| 4.2     |       | Form of Notes  (included in Exhibit 4.1)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| 4.3     |       | Registration Rights  Agreement, dated as of June 3, 2007, among Symbion, Inc., the  subsidiaries of Symbion, Inc. party thereto as guarantors, and Merrill,  Lynch, Pierce, Fenner & Smith Incorporated, Banc of America  Securities LLC and Greenwich Capital Markets, Inc. (b)                                                                                                                                                                                                                                                                        |
| 4.4     |       | First Supplemental  Indenture, dated as of September 18, 2008 among Symbion, Inc., the  Guarantors named therein and U.S. Bank National Association, as Trustee (b)                                                                                                                                                                                                                                                                                                                                                                                                             |
| 10.1    |       | Employment Agreement,  dated August 23, 2007, between Symbion, Inc. and Richard E.  Francis, Jr. (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
| 10.2    |       | Employment Agreement,  dated August 23, 2007, between Symbion, Inc. and Clifford G. Adlerz  (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| 10.3    |       | Credit Agreement, dated  as of August 23, 2007, among Symbol Holdings Corporation, Symbol Merger  Sub, Inc., the Lenders party thereto from time to time, Merrill Lynch  Capital Corporation as Administrative Agent and Collateral Agent, Bank of  America, N.A. as Syndication Agent, The Royal Bank of Scotland PLC and  Fifth Third Bank as Co-Documentation Agents, and Merrill  Lynch & Co., Merrill, Lynch, Pierce, Fenner & Smith  Incorporated and Banc of America Securities LLC as Joint Lead Arrangers  and Joint Lead Bookrunners |
| 10.4    |       | Lease Agreement, dated  June 26, 2001, between Burton Hills IV Partners and Symbion, Inc.  (c)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |
| 10.5    |       | First Amendment to  Lease Agreement, dated February 9, 2004, between Burton Hills IV  Partners and Symbion, Inc. (d)                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| 10.6    |       | Symbion Holdings  Corporation 2007 Equity Incentive Plan (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| 10.7    |       | Symbion, Inc.  Executive Change in Control Severance Plan (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               |
| 10.8    |       | Symbion Holdings  Corporation Compensatory Equity Participation Plan (b) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
| 10.9    |       | Shareholders Agreement,  dated as of August 23, 2007, among Symbion Holdings Corporation and the  stockholders of Symbion Holdings Corporation and other persons named therein  (b)                                                                                                                                                                                                                                                                                                                                                                                                  |
| 10.10   |       | Advisory Services and  Monitoring Agreement, dated as of August 23, 2007, among Symbion, Inc.,  Symbion Holdings Corporation and Crestview Advisors, L.L.C. (b)                                                                                                                                                                                                                                                                                                                                                                                                                 |
| 10.11   |       | Form of Employee  Contribution Agreement (b)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
| 10.12   |       | Symbion, Inc.  Supplemental Executive Retirement Plan (e) (g)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   |
| 10.13   |       | Management Rights  Purchase Agreement, dated as of July 27, 2005, by and among Parthenon  Management Partners, LLC, Andrew A. Brooks, M.D., Randhir S. Tuli and  SymbionARC Management Services, Inc.                                                                                                                                                                                                                                                                                                                                                                      |
| 10.14   |       | Interest Rate Swap  Agreement with counterparty, Merrill Lynch Capital Services, Inc. (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| 21      |       | Subsidiaries of  Registrant (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| 31.1    |       | Certification of Chief  Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002 (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 31.2    |       | Certification of Chief  Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002 (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 31.3    |       | Certification of Chief  Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| 31.4    |       | Certification of Chief  Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of  2002                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| 32.1    |       | Certification of Chief  Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of  2002 (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |
| 32.2    |       | Certification of Chief  Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of  2002 (h)                                                                                                                                                                                                                                                                                                                                                                                                                                                                             |

 

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(a)          Incorporated by reference to exhibitsfiled with the Registrant’s Current Report on Form 8-K filed April 24,2007 (File No. 000-50574)

(b)         Incorporated by reference to exhibitsfiled with the Registrant’s Registration Statement on Form S-4(Registration No. 333-153678)

(c)          Incorporated by reference to exhibitsfiled with the Registrant’s Registration Statement on Form S-1(Registration No. 333-89554)

(d)         Incorporated by reference to exhibitsfiled with the Registrant’s Annual Report on Form 10-K for the year ended December 31,2003 (File No. 000-50574)

(e)          Incorporated by reference to exhibitsfiled with the Registrant’s Quarterly Report on Form 10-Q for the quarterended March 31, 2005 (File No. 000-50574)

(f)            Incorporated by reference to exhibitsfiled with the Registrant’s Current Report on Form 8-K filed August 2,2005 (File No. 000-50574)

(g)         Compensation plan or arrangement

 

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(h)         Previously filed as an exhibit to the Registrant’sAnnual Report on Form 10-K for the year ended December 31, 2008 filedMarch 31, 2009 (File No. 000-50574)

 

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