{"id":40169,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/nonqualified-stock-option-plan-and-agreement-sutter-surgery.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"nonqualified-stock-option-plan-and-agreement-sutter-surgery","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/nonqualified-stock-option-plan-and-agreement-sutter-surgery.html","title":{"rendered":"Nonqualified Stock Option Plan and Agreement &#8211; Sutter Surgery Centers Inc. and Timothy R. Kelly"},"content":{"rendered":"<pre>\n                   SUTTER SURGERY CENTERS, INC., NONQUALIFIED\n                     STOCK OPTION PLAN AND AGREEMENT (KELLY)\n\n         THIS  AGREEMENT  is entered  into as of May 16,  1994,  between  SUTTER\nSURGERY CENTERS,  INC., a Delaware  corporation (the 'Company'),  and TIMOTHY R.\nKELLY (the 'Optionee').\n\n                                    Recitals\n\n         The Company's Board has established  this Agreement in order to fulfill\nthe  Company's  obligation  under  Section  3 of  the  Consulting  Agreement  by\nproviding  the  Optionee  with an  opportunity  to acquire  common  stock of the\nCompany;\n\n         NOW, THEREFORE, it is agreed as follows:\n\n                                    Agreement\n\nARTICLE 1. GRANT OF OPTION.\n\n         On the terms and conditions  stated below, the Company hereby grants to\nthe Optionee the option to purchase TWENTY-FIVE THOUSAND (25,000) Shares for the\nsum of ONE DOLLAR ($1.00) per Share,  the Fair Market Value of the Shares.  This\nOption is not intended to be an incentive stock option  described in section 422\nof the Code.\n\nARTICLE 2. NO TRANSFER OR ASSIGNMENT OF OPTION.\n\n        Except as  otherwise  provided  in this  Agreement,  this Option and the\nrights and  privileges  conferred  hereby  shall not be  transferred,  assigned,\npledged or  hypothecated  in any way,  whether by operation of law or otherwise,\nand shall not be subject to sale under execution, attachment or similar process.\nExcept as otherwise  provided  herein,  upon any transfer,  assignment,  pledge,\nhypothecation or other  disposition of this Option, or of any right or privilege\nconferred  hereby,  contrary to the  provisions  hereof-,  or any sale under any\nexecution,  attachment  or  similar  process  upon  the  rights  and  privileges\nconferred  hereby,  this Option and the rights and privileges  conferred  hereby\nshall immediately become null and void.\n\n\n\n\nARTICLE 3. RIGHT TO EXERCISE.\n\n         3.01.  Vesting.  Optionee may  exercise  this Option only to the extent\nthat  the  Optionee's  interest  in  this  Option  has  vested.  Subject  to the\nconditions  stated in this  Agreement,  the right to exercise  this Option shall\n<font size=\"2\">accrue in installments as follows:\n\n                                     No. of             Percentage of\n       Vesting Period                Shares           Shares Exercisable\n\n        May 16,1995                  5,000                   20%\n        May 16,1996                 10,000                   40%\n        May 16,1997                 15,000                   60%\n        May 16,1998                 20,000                   80%\n        May 15,1999                 25,000                  100%\n          Total                     25,000                  100%\n\n<\/font>         In the case of each  vesting  period,  the  number  of Shares of common\nstock, if any, previously purchased under this Option shall be deducted from the\namount of Shares  Optionee is entitled to acquire.  Any other  provision of this\nAgreement notwithstanding,  if the Optionee does not provide consulting services\nunder the Consulting  Agreement for any reason, and (i) the Consulting Agreement\nis still in effect,  and (ii) the Company has provided the Optionee with written\nnotice that, although the Consulting  Agreement is still in effect, the Optionee\nis not  currently  providing  consulting  services to the Company  (referred  to\nherein as a 'Lapse  Notice'),  then the date when any installment of this Option\nwould otherwise become exercisable under the foregoing schedule shall be delayed\nfor a period equal to the duration of the Lapse  Notice.  The Lapse Notice shall\nbe of no further  effect once the Company has  notified  the  Optionee  that the\nLapse Notice has terminated.\n\n         3.02.  Periods of  Nonexercisability  . This Section 3.02 shall prevail\nover any other  portion of this  Agreement.  The Company shall have the right to\ndesignate  as many as two (2)  periods of time,  each of which  shall not exceed\ntwelve (12) consecutive months in length,  during which this Option shall not be\nexercisable.  The  Company  may only make such a  designation  if it  reasonably\ndetermines that such a limitation on exercise is reasonably likely to facilitate\n(i) a lessening of any restriction on transfer pursuant to the Securities Act or\nany state\n\n                                       -2-\n\nsecurities  laws  on any  issuance  of  securities  by  the  Company,  (ii)  the\nregistration  or  qualification  of any  securities  by the  Company  under  the\nSecurities  Act or any state  securities  laws,  or (iii) the  perfection of any\nexemption from the registration or qualification  requirements of the Securities\nAct or any applicable  state securities laws for the issuance or transfer of any\nsecurities. This limitation on exercise shall not alter the vesting schedule set\nforth in Section  3.01 other than to limit the periods  during which this Option\nshall be  exercisable.  The Optionee  shall be notified in writing in advance of\nany such designation by the Company.\n\n         3.03. Listing, Registration or Qualification of Shares. If the listing,\nregistration  or  qualification  of the  Shares  subject  to this  Option on any\nsecurities  exchange  or under any state or  federal  law or if the  consent  or\napproval of any regulatory  body is necessary in connection with the granting of\nthis  Option or the  delivery  or  purchase  of Shares,  this  Option may not be\nexercised, in whole or in part, until such listing, registration, qualification,\nconsent or approval has been effected or obtained.  The Company shall make every\nreasonable   effort  to  effect  or  obtain  any  such  listing,   registration,\nqualification, consent or approval as may be required.\n\nARTICLE 4.        EXERCISE PROCEDURES.\n\n         4.01.    Notice of Exercise.\n\n                  A. The Optionee may exercise  this Option by giving  notice to\nthe Chief Financial  Officer of the Company.  In the notice,  the Optionee shall\nspecify (i) the election to exercise  this Option;  (ii) the number of Shares to\nbe issued;  and (iii) the form of payment for such Shares.  The  Optionee  shall\nsign the notice.  The Optionee  shall deliver the notice to the Chief  Financial\nOfficer of the Company; and at the time of giving the notice, the Optionee shall\nmake payment in a form  permissible  under  Article 5 for the full amount of the\nPurchase Price. The notice shall be in the form attached as Exhibit 4.01.\n\n                  B. A  representative  of the Optionee may exercise this Option\non behalf of the Optionee in accordance  with the procedures of Section  4.0l.A.\nIn addition to the  procedures  of Section  4.0l.A.,  the  representative  shall\nprovide proof satisfactory to the Company of the representative's authority as a\ncondition of the representative's right to exercise this Option.\n\n         4.02.  Issuance of Shares.  After receiving a proper notice of exercise\nand full  payment for the  Shares,  the Company  shall  issue a  certificate  or\ncertificates  for the Shares  subject to this Option  exercised by the Optionee,\nregistered in the name of\n\n                                       -3-\n\n\nthe Optionee (or a person set forth in Section 6.03), or, if so specified in the\nnotice  of option  exercise,  in the names of the  Optionee  and the  Optionee's\nspouse as community property or as joint tenants with right of survivorship. The\nCompany shall deliver any certificates representing the Shares to the Optionee.\n\nARTICLE 5.        PAYMENT FOR STOCK.\n\n         The Optionee  shall pay for the entire  Purchase Price in United States\ndollars,  or, at Optionee's  discretion,  Optionee may elect to surrender Shares\nprovided the Shares have been held for more than six (6) months and provided the\nShares are surrendered to the Company in good form for transfer and the transfer\nwill not cause Optionee or the Company to be in violation of the Securities Act,\nthe Securities Exchange Act, or state securities laws.\n\n         The combined  amount paid in cash and the value of  surrendered  Shares\nmust  equal the  Purchase  Price.  The Board  shall  determine  the value of any\nsurrendered Shares.\n\nARTICLE 6.        TERM AND EXPIRATION.\n\n         6.01.  Basic  Term.  This  Option  shall  expire on May 15, 2000 unless\nextended due to a delay as  described  in Section 3.02 with the delay  occurring\nafter  the  second  (2nd)  anniversary  of the  Date of  Grant.  If a  delay  in\nexercising  this Option (as  described in Section  3.02) occurs after the second\n(2nd)  anniversary  of the  Date of  Grant,  the  term of this  Option  shall be\nextended by one day for each day of such delay  occurring after the second (2nd)\nanniversary of the Date of Grant.\n\n         6.02.  Termination  of Service  (Except by  Death).  If the  Optionee's\nService  terminates  for any reason  other than death,  then this  Option  shall\nexpire  on the  earliest  of the  following  occasions:  \n\n                  A. The date determined pursuant to Section 6.01, above;\n\n                  B. The date  twelve  (12)  months  after  the  termination  of\nOptionee's Service without cause by the Company pursuant to Section 10.A. of the\nConsulting Agreement; or\n\n                  C.  The  date  ninety  (90)  days  after  the  termination  of\nOptionee's  Service for any reason other than termination of Optionee's  Service\nwithout  cause by the  Company  pursuant  to  Section  10.A.  of the  Consulting\nAgreement.\n\n                  The  Optionee  may  exercise all or part of this Option at any\ntime before its expiration under the preceding sentence,  but only to the extent\nthat this\n\n                                       4-\n\n\nOption had become  vested  before the  Optionee's  Service  terminated,  and the\nbalance of this Option shall lapse when the Optionee's  Service  terminates.  If\nthe Optionee dies after the  termination of Service but before the expiration of\nthis Option,  all or part of this Option may be exercised  (prior to expiration)\nby the executors or administrators of the Optionee's estate or by any person who\nhas acquired  this Option  directly  from the  Optionee by bequest,  beneficiary\ndesignation  or  inheritance  but only to the extent that this Option had become\nvested before the Optionee's Service terminated.\n\n         6.03.  Death of 0ptionee.  If the Optionee dies while in Service,  then\nthis Option shall expire on the earlier of the following dates:\n\n                  A. The  expiration  date  determined  pursuant to Section 6.01\nabove; or\n\n                  B. The date twelve (12) months after the Optionee's death. All\nor part of this Option may be exercised at any time before its expiration  under\nthe preceding  sentence by the  executors or  administrators  of the  Optionee's\nestate or by any person who has acquired this Option  directly from the Optionee\nby bequest,  beneficiary  designation or inheritance but only to the extent that\nsuch  Option(s)  had  become  vested  before  the  Optionee's  death  or  became\nexercisable as a result of the Optionee's  death.  The balance of such Option(s)\nshall lapse when the Optionee dies.\n\nARTICLE 7. LEGALITY OF INITIAL ISSUANCE.\n\n         Shares  shall be issued  upon the  exercise  of this Option only if the\nCompany  has  determined  that (i) it and the  Optionee  have taken any  actions\nrequired by law to register the Shares under the Securities Act or to perfect an\nexemption  from the  registration  requirements  thereof;  (ii)  any  applicable\nlisting  requirement  of any stock  exchange or automated  quotations  system on\nwhich the Shares are listed has been satisfied;  and (iii) any other  applicable\nprovision of state or federal securities law has been satisfied.\n\nARTICLE 8.     REGISTRATION RIGHTS.\n\n         The Company may, but shall not be obligated to, register or qualify the\nresale  of  Shares  by the  Optionee  under  the  Securities  Act  or any  other\napplicable  law.  The Company  shall not be  obligated  to take any  affirmative\naction in order to cause a resale of Shares to comply with any law. However, the\nCompany has granted this\n\n                                       -5-\n\nOption  pursuant  to the  terms of Rule 701  under  the  Securities  Act and the\nOptionee may resell Shares,  provided the Optionee  complies with the provisions\ndescribed in the Option Exercise Form, attached as Exhibit 4.01.\n\nARTICLE 9.   RESTRICTIONS ON TRANSFER OF SHARES.\n\n         9.01.  Restrictions.  Regardless  of whether the  offering  and sale of\nShares under this  Agreement  have been  registered  under the Securities Act or\nhave been registered or qualified  under the securities  laws of any state,  the\nCompany may impose  restrictions upon the sale, pledge or other transfer of such\nShares  (including the placement of appropriate  legends on stock  certificates)\nif, in the  judgment of the  Company  and its  counsel,  such  restrictions  are\nnecessary or desirable in order to achieve  compliance  with the Securities Act,\nthe securities laws of any state or any other law or with  restrictions  imposed\nby the Company's underwriters.\n\n         9.02. Administration.  Any determination by the Company and its counsel\nin  connection  with any of the  matters  set  forth in this  Article 9 shall be\nconclusive and binding on the Optionee and all other persons.\n\n         9.03.  Investment  Purpose.  The Optionee  hereby  represents  that any\nShares of common stock  purchased upon exercise of this Option will be purchased\nfor  investment  and not  with a view to the  distribution  thereof  within  the\nmeaning of the Securities Act. As a condition  precedent to any exercise of this\nOption,  the  Optionee  agrees that,  if requested by the Board,  he or she will\npromptly  submit a written  statement in a form  satisfactory to counsel for the\nCompany to the effect  that such  representation  is true and  correct as of the\ndate of purchase of any Shares hereunder.\n\n                  A. As a further  condition  precedent  to any exercise of this\nOption,  the Optionee shall comply with all regulations and  requirements of any\nregulatory authority having control of, or supervision over, the issuance of the\ncommon  stock of the Company and, in  connection  therewith,  shall  execute any\ndocuments  which the Board  deems  necessary  or  advisable,  provided  that the\nOptionee  shall  not be  required  to bear  any  expense  associated  with  such\ncompliance.\n\n                  B. By  accepting  this Option,  the  Optionee  agrees that the\nOptionee shall not, directly or indirectly, without the prior written consent of\nthe Company, sell, offer, contract to sell, pledge, grant any option to purchase\nor otherwise  dispose of any Shares of common stock acquired by exercise of this\nOption for a period  beginning  on the date of the Initial  Public  Offering and\nending one\n\n                                       -6-\n\n\nhundred  eighty  (180)  days  after  the date that  Shares  of common  stock are\nreleased  by the  Company's  underwriters  for sale to the  public in an Initial\nPublic  Offering.  Nothing in this Option shall be  construed  as requiring  the\nCompany to complete or attempt an Initial Public Offering.\n\n                  C.  Each  stock  certificate  issued  by  the  Company  to the\nOptionee  upon the  Optionee's  exercise of the Option  granted  shall bear such\nlegend as the Company deems  necessary or desirable to reflect the provisions of\nthis Section 9.03.\n\nARTICLE 10. SHARES AND ADJUSTMENTS.\n\n         10.01.  General. If there is a subdivision of the outstanding Shares, a\ndeclaration of a dividend payable in Shares, a declaration of a dividend payable\nin a form other than Shares in an amount that has a material effect on the value\nof  Shares,  a  combination  or  consolidation  of the  outstanding  Shares  (by\nreclassification   or   otherwise)   into  a  lesser   number   of   Shares,   a\nrecapitalization or a similar  occurrence,  the Board shall make all appropriate\nadjustments  in both (i) the number of Shares  covered by this Option;  and (ii)\nthe Exercise Price.\n\n         10.02. Merger;  Consolidation;  Sale; Liquidation.  If the Company is a\nparty to a merger or consolidation or if there is a sale of all or substantially\nall of the Company's assets other than a sale or transfer to a Subsidiary,  this\nOption shall be subject to the agreement of merger,  consolidation or sale. Such\nagreement  may, as determined by the Board,  provide for: (i) the  assumption of\nthis Option by the surviving corporation or its parent; (ii) its continuation by\nthe Company,  if the Company is the surviving  corporation;  (iii) payment for a\ncash  settlement  equal to (a) the difference  between the amount to be paid for\none (1) Share under such agreement and the Exercise Price  multiplied by (b) the\nnumber  of  Shares  subject  to the  Option,  vested or  unvested,  or both,  as\ndetermined  by the  Company;  or (iv) the  acceleration  of the  vesting of this\nOption,  followed by the  cancellation  of this Option if not exercised,  in all\nother  cases other than  clause  (iii)  without  the  Optionee's  consent.  (The\nOptionee's  consent  shall be required for a cash  settlement.)  A  cancellation\nshall not occur  earlier  than  thirty  (30) days  after  such  acceleration  is\neffective  and the  Optionee  has been  notified of such  acceleration.  If this\nOption has been  outstanding  for less than twelve (12) months,  a  cancellation\nneed not be preceded by an acceleration.\n\n         10.03.  Reservation  of Rights.  Except as  provided in Article 10, the\nOptionee shall have no rights by reason of (i) any subdivision or  consolidation\nof\n\n                                       -7-\n\nshares of stock of any class;  (ii) the  payment of any  dividend;  or (iii) any\nother  increase or  decrease in the number of shares of stock of any class.  Any\nissue by the Company of shares of stock of any class, or securities  convertible\ninto shares of stock of any class, shall not affect, and no adjustment by reason\nthereof  shall be made with  respect  to,  the number or  Exercise  Price of the\nShares subject to this Option.  The grant of this Option shall not affect in any\nway the right or power of the  Company to make  adjustments,  reclassifications,\nreorganizations  or changes of its  capital or business  structure,  to merge or\nconsolidate or to dissolve,  liquidate,  sell or transfer all or any part of its\nbusiness or assets.\n\nARTICLE 11. MISCELLANEOUS PROVISIONS.\n\n         11.01. Withholding Taxes. If the Company determines that it is required\nto withhold foreign,  federal,  state or local taxes as a result of the exercise\nof this  Option,  the  Optionee,  as a condition to the exercise of this Option,\nshall make  arrangements  satisfactory  to the  Company to enable the Company to\nsatisfy all withholding requirements.\n\n         11.02. Rights as a Stockholder.  The Optionee shall not have any rights\nas a  stockholder  with respect to any Shares  subject to this Option until such\nShares have been issued as provided in Section 4.02.\n\n         11.03. No Employment or Directorship Rights.  Nothing in this Agreement\nshall be  construed  as giving the Optionee the right to become or be treated as\nan Employee of the Company or any  Subsidiary  or a member of the Board.  \n\n         11.04. Notice. Any notice required by the terms of this Agreement shall\nbe given in writing and shall be deemed effective upon personal  delivery or two\n(2) days after the date of deposit with the United  States  Postal  Service,  by\nregistered or certified  mail with postage and fees prepaid and addressed to the\nparty entitled to such notice at the address shown below such party's  signature\non this  Agreement,  or at such other address as such party may designate by ten\n(10) days' advance written notice to the other party to this Agreement.\n\n         11.05.  Entire Agreement.  This Agreement and the Consulting  Agreement\nconstitute  the entire  contract  between the parties  hereto with regard to the\nsubject  matter hereof and supersede all prior and  contemporaneous  agreements,\nrepresentations, warranties and understandings of the parties.\n\n         11.06.  Choice  of Law.  This  Agreement  shall  be  governed  by,  and\nconstrued in accordance with, the laws of the State of California  (exclusive of\nits\n\n                                       -8-\n\n\nlaws  regarding  the  conflict of laws),  as such laws are applied to  contracts\nentered into and performed in such state.  The state courts of California  shall\nhave exclusive jurisdiction over any judicial proceeding relating to any dispute\narising out of the interpretation, performance or breach of this Agreement.\n\nARTICLE 12. DEFINITIONS.\n\n         12.01.  Agreement.  Shall mean this Nonqualified  Stock Option Plan and\nAgreement.\n\n         12.02.  Board.  Shall mean the Board of Directors  of the  Company,  as\nconstituted from time to time.\n\n         12.03. Code. Shall mean the Internal Revenue Code of 1986, as amended.\n\n         12.04.  Consulting  Agreement.  Shall  mean the  Consulting  Agreement,\neffective as of May 16, 1994, by and between the Company and the Optionee.\n \n         12.05. Date of Grant. Shall mean the date as of which this Agreement is\nentered into.\n\n         12.06. Employee. Shall mean any individual who is a common law employee\nof the Company or of a Subsidiary.\n\n         12.07.  Exercise  Price.  Shall mean the amount for which one (1) Share\nmay be purchased upon exercise of this Option as specified in Section 1.01.\n\n         12.08. Fair Market Value.  Shall mean the fair market value of a Share,\nas determined by the Board in good faith. Such determination shall be conclusive\nand binding on all persons.\n\n         12.09.  Initial Public  Offering.  Shall mean an initial public primary\noffering by  underwriters on a firm commitment or best efforts basis in which it\nis expected  that the common stock will become  listed on a national  securities\nexchange or traded on the Automated Quotation System of the National Association\nof Securities Dealers or other over-the-counter-market.\n\n         12.10.  0ption.  Shall mean a stock  option not  described  in sections\n422(b) or 423(b) of the Code granted  under this  Agreement  and  entitling  the\nOptionee to purchase Shares.\n\n         12.11.  Purchase Price. Shall mean the Exercise Price multiplied by the\nnumber of Shares with respect to which this Option is being exercised.\n\n         12.12.  Securities  Act.  Shall  mean the  Securities  Act of 1933,  as\namended.\n\n                                       -9-\n\n         12.13.  Securities Exchange Act. Shall mean the Securities Exchange Act\nof 1934, as amended.\n\n         12.14. Service.  Shall mean consulting service of the Optionee pursuant\nto the Consulting Agreement.\n\n         12.15.  Share. Shall mean one (1) share of Common Stock, as adjusted in\naccordance with Article 10 (if applicable).\n\n         12.16.  Subsidiary.  Shall mean any corporation,  if the Company or one\n(1) or more other Subsidiaries own, individually or collectively,  not less than\nfifty  percent  (50%) of the  total  combined  voting  power of all  classes  of\noutstanding stock of such corporation.\n\n         IN WITNESS  WHEREOF,  the  Company  has  caused  this  Agreement  to be\nexecuted on its behalf by its officer  duly  authorized,  and the  Optionee  has\npersonally executed this Agreement.\n\n                                    OPTIONEE:\n\n\n                                        ----------------------------------\n                                                 TIMOTHY R. KELLY \n\n                                       Address:\n                                               ---------------------------\n                                               ---------------------------\n\n                                    COMPANY:\n\n                                       SUTTER SURGERY CENTERS, INC., a\n                                       Delaware corporation\n\n\n\n                                       By\n                                          -------------------------------\n                                       Its\n                                          -------------------------------\n                                       Address:   1201 Alhambra BlvD., Ste. 330 \n                                                  Sacramento, CA 95816\n\n\n\n\n\n\n\n\n                                      -10-\n\n\n                                  EXHIBIT 4.01\n\n                              OPTION EXERCISE FORM\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n                                                       Date: __________________\n\n                            NONQUALIFIED STOCK OPTION\n\n                                  EXERCISE FORM\n\n\n\nSutter Surgery Centers, Inc.\nAttention: Chief Financial Officer\n1201 Alhambra Boulevard, Suite 330\nSacramento, CA 95816\n\n        The undersigned elects to exercise the option to purchase_______________\n(__________) shares of common stock (the  'Shares') of Sutter  Surgery  Centers,\nInc. (the 'Company'),  in accordance with the nonqualified  stock option granted\nto the undersigned by the Company as of May 16, 1994, pursuant to a Nonqualified\nStock Option Plan and Agreement (the 'Agreement').\n\n         Prior to the issuance of these Shares,  I will make full payment of the\npurchase price for the Shares by one of the following methods as indicated:\n\n         [ ]     In cash in the amount of\n\n         [ ]     By  tender  of Shares of the Company  owned by the  undersigned\n                 for more than six (6) months,  having a fair market  value when\n                 combined  with  other  forms of  payment  of not less  than the\n                 purchase price.\n\n         Please  issue the Shares to  ____________________________________[i.e.,\nOptionee;  Optionee and spouse as community property;  or Optionee and spouse as\njoint tenants with right of survivorship].\n\n         I  represent  and agree that I am over  eighteen  (18) years of age and\nthat I have no present intention to transfer,  sell or otherwise dispose of such\nShares,  except as permitted  pursuant to the Agreement  and in compliance  with\napplicable securities laws.\n\n         I acknowledge  and  understand  that the Company has granted the Option\npursuant  to the  terms  of Rule  701  under  the  Securities  Act and  that the\nfollowing provisions relating to the resale of my Shares shall apply:\n\n                       (A) If I am not an affiliate  of the Company,  as defined\n                  in Rule 144 of the Securities Act of 1933 ('Securities  Act'),\n                  I may  resell my Shares  ninety  (90) days  after the  Company\n                  becomes subject to the reporting requirements of section 13 or\n                  15(d) of the Securities  Exchange Act of 1934 ('Exchange Act')\n                  (e.g.,  ninety (90) days after the  Company's  Initial  Public\n                  Offering);  provided I comply with Rule 144 of the  Securities\n                  Act's  manner of sale  limitations  set  forth in Rule  144(f)\n                  (e.g., my Shares are sold in a 'broker's  transaction' or to a\n                  'market maker'); or\n\n                       (B) If I am an affiliate  of the  Company,  as defined in\n                  Rule 144 of the Securities  Act, I may resell my shares ninety\n                  (90) days after the Company  becomes  subject to the reporting\n                  requirements of section 13 or 15(d) of the Exchange Act (e.g.,\n                  ninety (90) days after the Company's Initial Public Offering);\n                  provided I comply  with all of the  provisions  of Rule 144 of\n                  the  Securities  Act, other than Rule 144(d)  (holding  period\n                  requirement).\n\n         I further  acknowledge  and understand  that,  if, for any reason,  the\nShares are not covered by the exemption  contained in Rule 701 of the Securities\nAct, the Shares must be sold under the provisions of Rule 144. These  provisions\ninclude,  among other things:  the  availability  of certain public  information\nabout the  Company,  the Shares  being held for a minimum of two (2) years,  the\nsale being made (i) through a broker in an unsolicited 'broker's transaction' or\n(ii) to a market maker, and the amount of securities being sold during any three\n(3) month period not exceeding  specified  limitations  (generally,  one percent\n(1%) of the total amount outstanding).\n\n         Moreover,  I further acknowledge and understand that if the Company has\nregistered  the  Shares  on Form  S-8 (or any  successor  form),  the  following\nprovisions shall apply:\n\n                                       -2-\n\n                       (A) If I am not an affiliate of the Company, I may freely\n                  resell my Shares, subject to any contractual obligations I may\n                  have to the Company; or\n\n                       (B) If I am an affiliate of the Company,  I may resell my\n                  Shares,  subject  to (i) the  provisions  of  Rule  144 of the\n                  Securities   Act,  other  than  Rule  144(d)  (holding  period\n                  requirement);  and (ii) any contractual  obligations I have to\n                  the Company.\n\n         I  understand  that the Shares may be  subject to the  restrictions  on\ntransfer set forth in Article 9 of the Agreement.\n\n         I agree to obtain the consent of my spouse for any such agreement which\nmay be required by Company.\n\n         My address of record is:\n\n                          ---------------------------\n\n                          ---------------------------\n\nand my Social Security number is:\n                                 ---------------------------\n                                     Very truly yours,\n\n\n\n                                     -------------------------------------\n                                                TIMOTHY R. KELLY\n\n                                       -3-\n\n\n\n         The undersigned,  being the spouse of  _______________________________,\ndoes  hereby  acknowledge  that he or she has  read  and is  familiar  with  the\nprovisions  of the  above  Nonqualified  Stock  Option  Exercise  Form  and  the\nAgreement,  and he or she hereby agrees thereto and joins therein to the extent,\nif any, that his or her agreement and joinder may be necessary.\n\n         DATED:\n               ---------------------------\n\n                                                --------------------------------\n                                                             Signature\n\n\n                                                --------------------------------\n                                                             Print Name\n\n\n\n\nReceipt of the above is hereby \nacknowledged:\n\nSUTTER SURGERY CENTERS, INC.,\na Delaware corporation\n\n\n\nBy\n  -------------------------------\n\nIts\n   ------------------------------\n\nDated:\n      ---------------------------\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7751],"corporate_contracts_industries":[9438],"corporate_contracts_types":[9539,9544],"class_list":["post-40169","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-healthsouth-corp","corporate_contracts_industries-health__misc","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40169","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40169"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40169"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40169"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40169"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}