Exhibit
10.24


 


NovaMed, Inc. Amended and Restated Executive Incentive
Compensation Plan


 


ARTICLE 1


 


Statement of Purpose


 


The Plan is intended to
increase shareholder value and the success of the Company by motivating key
executives to perform to the best of their abilities and to achieve the Company’s
objectives.  The Plan’s goals are to be
achieved by providing key executives with incentive awards based on the
achievement of goals relating to the performance of the Company or upon the
achievement of objectively determinable individual performance goals. The Plan
is intended to permit the payment of Awards that may qualify as
performance-based compensation under Code Section 162(m).


 


ARTICLE 2


 


Definitions


 


The
terms used in this Plan include the feminine as well as the masculine gender
and the plural as well as the singular, as the context in which they are used
requires. The following terms, unless the context requires otherwise, are
defined as follows:


 


2.1           “Affiliate” means any parent, subsidiary or other entity that is
directly or indirectly controlled by, or controls, the Company.


 


2.2           “Award” means, with
respect to each Participant, the award determined by the Committee under Section 4.3
for the Performance Period, subject to the Committee’s authority to eliminate
or reduce the Award otherwise payable.


 


2.3           “Base
Salary” means, as to any
Performance Period, the Participant’s gross salary paid during the Performance
Period.  Such Base Salary shall be
determined before both (a) deductions for taxes or benefits, and (b) deferrals
of compensation pursuant to Company-sponsored benefit plans or deferral
arrangements.


 


2.4           “Board” means the
NovaMed, Inc. Board of Directors.


 


2.5           “Code” means the
Internal Revenue Code of 1986, as amended.


 


2.6           “Committee” means the
Compensation Committee of the Board or any successor committee with
responsibility for compensation, or any subcommittee, as long as the number of
Committee members and their qualifications shall at all times be sufficient to
meet the applicable requirements for “outside directors” under Section 162(m) and
the regulations thereunder, as in effect from time to 


 

















 


time, and the independence requirements of NASDAQ  or any other applicable exchange on which the
Company’s common equity is at the time listed.


 


2.7           “Company” means
NovaMed, Inc. and any of its Affiliates that adopt this Plan or that have
employees who are Participants under this Plan.


 


2.8           “Determination Date” means the date that is 90 days after the
beginning of the Performance Period or, if earlier, the date on which no more
than 25% of the Performance Period has elapsed.


 


2.9           “Disability” means
permanent and total disability as defined in the Company’s long term disability
plan or, if no such plan is then in effect, as defined in Code Section 22(e)(3).


 


2.10         “Executive Officer”
means any Company employee who is an “executive officer” as defined in Rule 3b-7
promulgated under the Exchange Act.


 


2.11         “Exchange Act” means
the Securities Exchange Act of 1934, as amended.


 


2.12         “Maximum Award” means as to any Participant for any
Performance Period,  $1,500,000.


 


2.13         “NASDAQ” means the Nasdaq Stock Market, including the
Nasdaq National Market.


 


2.14         “Participant” means
an Executive Officer or key management employee as described in Article 3
of this Plan.


 


2.15         “Performance Period”
means the period for which an Award may be made. Unless otherwise specified by
the Committee, the Performance Period shall be a calendar year, beginning on January 1
of any year.


 


2.16         “Plan” means this
NovaMed, Inc. Amended and Restated Executive Incentive Compensation Plan,
as it may be amended from time to time.


 


2.17         “Retirement” means a
Termination of Employment, after appropriate notice to the Company, (a) on
or after the earliest permissible retirement date under a qualified pension or
retirement plan of the Company or (b) upon such terms and conditions
approved by the Committee, or officers of the Company designated 


 


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by the Board or the Committee.


 


2.18         “SEC” means the
Securities and Exchange Commission.


 


2.19         “Section 162(m)”
means Code Section 162(m) and regulations promulgated thereunder by
the Secretary of the Treasury.


 


2.20         “Termination of Employment” means (a) the termination of the Participant’s active employment
relationship with the Company, unless otherwise expressly provided by the
Committee, or (b) the occurrence of a transaction by which the Participant’s
employer ceases to be the Company or an Affiliate.


 


ARTICLE 3


 


Participation


 


An
Executive Officer or other key management employee of the Company designated by
the Committee with respect to a Performance Period shall be a Participant in
this Plan and shall continue to be a Participant until any Award he may receive
has been paid or forfeited under the terms of this Plan.  No person shall be automatically entitled to
participate in the Plan.


 


ARTICLE 4


 


Incentive Awards


 


4.1           Objective Performance Goals.  The Committee shall establish written, objective
performance goals for a Performance Period no later than the Determination
Date.  The objective performance goals
shall be stated as specific amounts of, or specific changes in, one or more of
the financial measures described in Section 4.2.  Objective performance goals may
also include operational goals such as: productivity, efficiency, safety,
acquisitions and development, physician recruitment and/or syndication and
other strategic objectives and individual performance goals.  The objective performance goals need not be
the same for different Performance Periods and for any Performance Period may
be stated: (a) as goals for NovaMed, Inc., for one or more of its
Affiliates, divisions, business or organizational units, facilities, or for any
combination of the foregoing; (b) on an absolute basis or relative to the
performance of other companies or of a specified index or indices, or be based
on any combination of the foregoing; and (c) separately for one or more of
the Participants, collectively for the entire group of Participants, or in any
combination of the two.


 


4.2           Financial Measures.  The Committee shall use any one or more of the following financial
measures to establish objective performance goals under Section 4.1:  


 


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net income, operating earnings, earnings per share, operating earnings
per share, earnings before interest taxes depreciation and amortization
(EBITDA), operating income, revenues, shareholders’ equity, return on equity,
return on assets, return on invested capital, economic value added, operating
margins, cash flow, total shareholder return, expenses, debt-to-capital ratio
or market share.  The Committee may
specify any reasonable definition of the financial measures it uses.  Such definitions may provide for reasonable
adjustments and may include or exclude items, including but not limited to:
realized investment gains and losses; gains and/or losses on the sale of
minority interests; extraordinary, unusual or non-recurring items; effects of
accounting changes, currency fluctuations, acquisitions, divestitures, or
necessary financing activities; recapitalizations, including stock splits and
dividends; expenses for restructuring or productivity initiatives; stock
compensation expense; gains and/or losses from mark-to-market adjustments for
derivative instruments; and other non-operating items.


 


4.3           Award.  On
or prior to the Determination Date, the Committee, in its sole discretion,
shall establish a formula, matrix or other objective mechanism for determining
the Award (if any) that may be payable to each Participant upon achievement of
the applicable objective performance goals. 
Each formula shall be set forth in writing and may provide one or more
levels of Award (e.g., “Target”, “Threshold”,
“Maximum”, etc.), as determined by the Committee; provided, however, that in no
event shall a Participant’s Award for any Performance Period exceed the Maximum
Award.  For any Performance Period, the
Committee shall have sole and absolute discretion to (i) reduce the amount
of, or eliminate entirely, the Award that would otherwise be payable to a
Participant under the Award formula, or (ii) increase the amount of any
Award payable to a Participant (but not to exceed the Maximum Award for any
Performance Period) whose compensation, at no time during the Performance
Period, is subject to Code Section 162(m) based upon the Committee’s
review of the objective performance goals for each Participant pursuant to Section 4.4
and the individual performance of such Participant.


 


4.4           Performance Evaluation.   Within a reasonable time after the close of a
Performance Period, the Committee shall determine whether and to what extent
the objective performance goals established for that Performance Period have
been met by the respective Participants. If the objective performance goals and
any other material terms established by the Committee have been met by a
Participant, the Committee shall so certify in writing with respect to such
Participant.


 


4.5           Payment or Deferral of the Award.


 


(a)           As
soon as practicable after the Committee’s determination under Section 4.4,
but subject to Sections 4.5(b) and (c), the Company shall pay the 


 


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Award
to the Participant. The target timing for the payments under the Plan shall be on
or before the date that is 2 1⁄2 months after the end of the Performance Period;
provided, however, that payments shall be made no later than the December 31
following the end of the Performance Period unless such Award has otherwise
been deferred pursuant to Section 4.5(b) or delayed pursuant to Section 4.5(c).  The Company shall have the right to deduct
from any Award, any applicable Federal, state and local income and employment
taxes, and any other amounts that the Company is otherwise required to deduct.


 


(b)           Subject
to the Committee’s approval and applicable law, Participants may request that
payments of an Award be deferred under a deferred compensation arrangement
maintained by the Company by making a deferral election pursuant to such rules and
procedures as the Committee may establish from time to time.


 


(c)           If a
payment obligation under this Plan arises on account of a Participant’s
separation from service while that Participant is a “specified employee” (as
defined under Code Section 409A and determined in good faith by the
Committee), any payment of “deferred compensation” (as defined under Treasury
Regulation Section 1.409A-1(b)(1), after giving effect to the exemptions in
Treasury Regulation Sections 1.409A-1(b)(3) through (b)(12)) that is scheduled
to be paid within six months after such separation from service shall, in lieu
thereof, be paid within 15 days after the end of the six-month period beginning
on the date of such separation from service or, if earlier, within 15 days
after the appointment of the personal representative or executor of that
Participant’s estate following his death.


 


4.6           Eligibility for Payments.


 


(a) Except as otherwise provided in this Section 4.6,
a Participant shall be eligible to receive an Award for a Performance Period
only if such Participant is employed by the Company continuously from the
beginning of the Performance Period to the end of the Performance Period;
provided, however, that if a Participant is not employed by the Company
continuously from the beginning of the Performance Period to the end of the
Performance Period, a Participant may be eligible for a pro-rata Award if (i) the
objective performance goals established hereunder are met and (ii) if the
Participant’s employment agreement with the Company provides for the payment of
a pro-rata amount under the applicable circumstances.


 


(b) Under Section 4.6(a), a leave of
absence that lasts less than three months and that is approved in accordance
with applicable Company policies is not a break in continuous employment. In
the case of a leave of absence of three months or longer: (1) the
Committee shall determine whether the leave of absence constitutes a break in
continuous employment, and (2) if a Participant is on a leave of absence
on the date that an Award or payment of the Award is to be made, the Committee
may require that the Participant return to active 


 


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employment
with the Company at the end of the leave of absence as a condition of receiving
the Award or payment.


 


(c) The
Committee may determine, in its sole discretion and consistent with the terms
of a Participant’s employment agreement, as applicable, that an Award will be
payable pro-rata for a Participant who either becomes eligible to participate
during the Performance Period or has a Termination of Employment during the
Performance Period due to his death, Retirement or Disability.


 


ARTICLE 5


 


Administration


 


5.1           General Administration.  This Plan shall be administered by the Committee, subject
to such requirements for review and approval by the Board as the Board may
establish.  Subject to the terms and
conditions of this Plan and Section 162(m), the Committee is authorized
and empowered in its sole discretion to select or approve Participants and to
make Awards in such amounts and upon such terms and conditions as it shall
determine.   The Committee may delegate
any of the Committee’s duties and authority to the extent the Committee
determines that such delegation would not cause an Award intended to be
performance-based compensation under Section 162(m) to fail to
qualify as such.


 


5.2           Administrative Rules.  The Committee shall have full power and authority to adopt,
amend and rescind administrative guidelines, rules and regulations
pertaining to this Plan and to interpret this Plan and rule on any
questions respecting any of its provisions, terms and conditions.  Subject to the requirements of Section 162(m),
the Committee may delegate specific administrative tasks to Company employees
or others as appropriate for proper administration of the Plan.


 


5.3           Committee Members Not Eligible.  No member of the Committee
shall be eligible to participate in this Plan.


 


5.4           Committee Members Not Liable.  The Committee and each of its members shall be entitled to
rely upon certificates of appropriate officers of the Company with respect to
financial and statistical data in order to determine if the objective
performance goals for a Performance Period have been met. Neither the Committee
nor any member shall be liable for any action or determination made in good
faith with respect to this Plan or any Award made hereunder.


 


5.5           Decisions Binding.  All decisions, actions and interpretations of
the Committee concerning this Plan shall be final and binding on NovaMed, Inc.
and its Affiliates 


 


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and their respective boards of directors, and on all Participants and
other persons claiming rights under this Plan.


 


5.6           Application of Section 162(m); Shareholder Approval.


 


(a)           This
Plan is intended to be administered, interpreted and construed so that Award
payments remain tax deductible to the Company and unlimited by Section 162(m),
which restricts under certain circumstances the Federal income tax deduction
for compensation paid by a public company to named executives in excess of $1
million per year.  The Committee, or the
Board, may, without shareholder approval, amend this Plan retroactively or
prospectively to the extent it determines necessary to comply with any subsequent
amendment or clarification of Section 162(m) required to preserve the
Company’s Federal income tax deduction for compensation paid pursuant to this
Plan.


 


(b)           All
Awards under the Plan shall be contingent upon shareholder approval of this
Plan in accordance with Section 162(m), the regulations thereunder and
other applicable U.S. Treasury regulations. Unless and until such shareholder
approval is obtained, no Award shall be made pursuant to this Plan.


 


ARTICLE 6


 


Amendments; Termination


 


This
Plan may be amended or terminated by the Board or the Committee. All amendments
to this Plan, including an amendment to terminate this Plan, shall be in
writing. An amendment to this Plan shall not be effective without the prior
approval of the shareholders of NovaMed, Inc. if such approval is
necessary to continue to qualify Awards as performance-based compensation under
Section 162(m), or otherwise under Treasury or SEC regulations, the rules of
NASDAQ or any other applicable exchange or any other applicable law or
regulations. Unless otherwise expressly provided by the Board or the Committee,
no amendment to this Plan shall apply to Awards made before the effective date
of such amendment. A Participant’s rights with respect to any Awards made to
him may not be abridged by any amendment, modification or termination of this
Plan without his individual consent.


 


ARTICLE 7


 


Other Provisions


 


7.1           Duration of the Plan.  This Plan is effective as of January 1,
2006 (the “Effective Date”), subject to the approval of the shareholders of the
Company. This Plan shall remain in effect until all Awards made under this Plan
have been paid or forfeited under the terms of this Plan, and all Performance
Periods related to Awards made under this Plan have expired.  No Awards may be made under this Plan for any
Performance Period that would end after December 31, 2010 unless 


 


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the Board, subject to any shareholder approval that may then be
required to continue to qualify this Plan as a performance-based plan under Section 162(m),
extends this Plan.


 


7.2           Awards Not Assignable.  No Award or any right thereto shall be
assignable or transferable by a Participant except by will or by the laws of
descent and distribution. Any other attempted assignment or alienation shall be
void and of no force or effect.


 


7.3           Participant’s Rights.  The right of any Participant to receive any payments under
an Award granted to such Participant pursuant to the provisions of this Plan
shall be an unsecured claim against the general assets of the Company. This
Plan shall not create, nor be construed in any manner as having created, any
right by a Participant to any Award for a Performance Period because of a
Participant’s participation in this Plan for any prior Performance Period, or
because the Committee has made a written certification under Section 4.4
for the Performance Period.  Moreover,
there is not obligation for uniform treatment for Participants under this Plan.


 


7.4           Termination of Employment.  The Company retains the right
to terminate the employment of any Participant or other employee at any time
for any reason or no reason, and an Award is not, and shall not be construed in
any manner to be, a waiver of such right.


 


7.5           Exclusion from Benefits.  Awards under this Plan shall
not constitute compensation for the purpose of determining participation or
benefits under any other plan of the Company unless specifically included as
compensation in such plan.


 


7.6           Successors.  Any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
the Company’s business or assets, shall assume the Company’s liabilities under
this Plan and perform any duties and responsibilities in the same manner and to
the same extent that the Company would be required to perform if no such
succession had taken place.


 


7.7           Law Governing Construction.  The construction and
administration of this Plan and all questions pertaining thereto shall be
governed by the laws of the State of Delaware, except to the extent that such
law is preempted by Federal law.


 


7.8           Headings Not a Part Hereto.  Any headings preceding the text
of the several Articles, Sections, subsections, or paragraphs hereof are
inserted solely for 


 


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convenience of reference and shall not constitute a part of this Plan,
nor shall they affect its meaning, construction or effect.


 


7.9           Severability
of Provisions.  If
any provision of this Plan is determined to be void by any court of competent
jurisdiction, this Plan shall continue to operate and, for the purposes of the
jurisdiction of the court only, shall be deemed not to include the provision
determined to be void.


 


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