<PAGE> 1
As filed with the Securities and Exchange Commission on November 26, 1996
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
MEDPARTNERS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 63-1151076
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
3000 GALLERIA TOWER, SUITE 1000
BIRMINGHAM, ALABAMA 35244
(Address of Principal Executive Offices)
(Zip Code)
MEDPARTNERS, INC.
EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
LARRY R. HOUSE
CHAIRMAN OF THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE OFFICER
MEDPARTNERS, INC.
3000 GALLERIA TOWER, SUITE 1000
BIRMINGHAM, ALABAMA 35244
(Name and Address of Agent for Service)
(205) 733-8996
(Telephone Number, including Area Code, of Agent for Service)
The Commission is requested to send copies of all notices and
other communications to:
ROBERT E. LEE GARNER, ESQ. J. BROOKE JOHNSON, JR., ESQ.
HASKELL SLAUGHTER & YOUNG, L.L.C. SR. VICE PRESIDENT AND GENERAL COUNSEL
1200 AMSOUTH/HARBERT PLAZA MEDPARTNERS, INC.
1901 SIXTH AVENUE NORTH 300 GALLERIA TOWER, SUITE 1000
BIRMINGHAM, ALABAMA 35203 BIRMINGHAM, ALABAMA 35244
TEL: (205) 251-1000 TEL: (205) 733-8996
FAX: (205) 324-1133 FAX: (205) 982-7709
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share Price Registration Fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 5,000,000 $21.63 (2) $108,150,000 $32,772.73
$.001 per share (including shares(1)
Common Stock Purchase Rights)
==================================================================================================================
</TABLE>
(1) Maximum number of shares which may be issued by MedPartners, Inc.,
formerly MedPartners/Mullikin, Inc. ("MedPartners"), pursuant to the
MedPartners, Inc. Employee Stock Purchase Plan.
(2) Determined pursuant to Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the registration fee, and
represents the last sale price of the Common Stock of MedPartners as
reported on the New York Stock Exchange Composite Transaction Tape on
November 22, 1996.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
MedPartners, Inc., a Delaware corporation (from November 28, 1995 to
September, 1996, known as MedPartners/Mullikin, Inc.) (the "Company"), hereby
incorporates by reference into this registration statement on Form S-8 (the
"Registration Statement") the following documents which have heretofore been
filed by the Company with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Prospectus dated October 16, 1996, filed as part
of the Company's Registration Statement on Form S-1
(Reg. No. 333-13471).
(b) The description of securities to be registered contained in
the Registration Statement filed with the Commission on Form
8-B under the Exchange Act and declared effective on November
29, 1995, including any amendment or reports filed for the
purpose of updating such description.
(c) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Exchange Act since November 29, 1995.
(d) All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14 and 15(d) of the Exchange Act prior
to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration
Statement and to be a part hereof from the date of filing of
such documents.
Any statements contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the
extent that a statement contained herein (or in any other subsequently filed
document which is also incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to
constitute a part of this Prospectus except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS & COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 102(b)(7) of the DGCL grants corporations the right to limit
or eliminate the personal liability of their directors in certain circumstances
in accordance with provisions therein set forth. The Company's Second Amended
and Restated Certificate of Incorporation contains a provision eliminating or
limiting director liability to the Company and its stockholders for monetary
damages arising from acts or omissions in the director's capacity as a
director. The provision does not, however, eliminate or limit the personal
liability of a director (i) for any breach of such director's duty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
the Delaware statutory provision making directors personally liable, under a
negligence standard, for unlawful dividends or unlawful stock purchases or
redemptions, or (iv) for any transaction from which the director derived an
improper personal benefit. This provision offers persons who serve on the
Board of Directors of the Company protection against awards of monetary damages
resulting from breaches of their duty of care (except as indicated above). As
a result of this provision, the ability of the Company or a stockholder thereof
to successfully prosecute an action against a director for a breach of his duty
of care is limited. However, the provision does not affect the availability of
equitable remedies such as an injunction or rescission based upon a director's
breach of his duty of care. The SEC has taken the position that the provision
will have no effect on claims arising under the federal securities laws.
Section 145 of the DGCL grants corporations the right to indemnify
their directors, officers, employees and agents in accordance with the
provisions therein set forth. The Company's Second Amended and Restated By-laws
provide for mandatory indemnification rights, subject to limited exceptions, to
any director, officer, employee, or agent of the Company who, by reason of the
fact that he or she is a director, officer, employee, or agent of the Company
is involved in a legal proceeding of any nature. Such indemnification rights
include reimbursement for expenses incurred by such director, officer,
employee, or agent in advance of the final disposition of such proceeding in
accordance with the applicable provisions of the DGCL.
The Company has entered into agreements with all of its directors and
executive officers pursuant to which the Company has agreed to indemnify such
directors and executive officers against liability incurred by them by reason
of their services of a director to the fullest extent allowable under
applicable law. In addition, the Company has purchased insurance containing
customary terms and conditions as permitted by Delaware law on behalf of its
directors and officers, which may cover liabilities under the Securities Act of
1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
II-2
<PAGE> 4
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Exhibit
- -------------- ----------------------
<S> <C>
(4)-1 MedPartners, Inc. Employee Stock Purchase Plan.
(5) Opinion of Haskell Slaughter & Young, L.L.C. as to legality of the shares of MedPartners,
Inc. Common Stock being registered.
(23)-1 Consent of Ernst & Young LLP, Independent Auditors. See pages immediately following signature pages
to the Registration Statement.
(23)-2 Consent of Price Waterhouse LLP, Independent Accountants. See pages immediately following signature pages
to the Registration Statement.
(23)-3 Consent of Haskell Slaughter & Young, L.L.C. (contained in the opinion of counsel filed as
Exhibit 5 to this Registration Statement).
24 Powers of Attorney (set forth on the signature page of this Registration Statement).
</TABLE>
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the Registration
Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in the amount of securities offered (if the total
dollar value of securities offered would not exceed that
II-3
<PAGE> 5
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act if, in the aggregate, the
changes in amount and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (ii) do not
apply if the registration statement is on Form S-3, S-8, or F-3,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in period reports
filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions or, otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Birmingham, State of Alabama, on November 26,
1996.
MEDPARTNERS, INC.
By Larry R. House
--------------------------------------
Larry R. House
Chairman of the Board, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry R. House and Harold O. Knight,
Jr., and each or either of them, his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and any subsequent registration statements relating to the offering to which
this Registration Statement relates, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully
and to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or either
of them, or their or his substitutes or substitute, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Larry R. House Chairman of the Board, President November 26, 1996
- ------------------------------------------- and Chief Executive Officer
Larry R. House (Principal Executive Officer)
Harold O. Knight, Jr. Executive Vice President and November 26, 1996
- ------------------------------------------- Chief Financial Officer
Harold O. Knight, Jr. (Principal Financial and
Accounting Officer)
Richard M. Scrushy
- ------------------------------------------- Director November 26, 1996
Richard M. Scrushy
</TABLE>
II-5
<PAGE> 7
<TABLE>
<S> <C> <C>
Larry D. Striplin, Jr. Director November 26, 1996
- -------------------------------------------
Larry D. Striplin, Jr.
Charles W. Newhall III Director November 26, 1996
- -------------------------------------------
Charles W. Newhall III
Ted H. McCourtney, Jr. Director November 26, 1996
- -------------------------------------------
Ted H. McCourtney, Jr.
Walter T. Mullikin, M.D. Director November 26, 1996
- -------------------------------------------
Walter T. Mullikin, M.D.
John S. McDonald, J.D. Director November 26, 1996
- -------------------------------------------
John S. McDonald, J.D.
Richard J. Kramer Director November 26, 1996
- -------------------------------------------
Richard J. Kramer
Rosalio J. Lopez, M.D. Director November 26, 1996
- -------------------------------------------
Rosalio J. Lopez, M.D.
C.A. Lance Piccolo Director November 26, 1996
- -------------------------------------------
C.A. Lance Piccolo
Thomas W. Hodson Director November 26, 1996
- -------------------------------------------
Thomas W. Hodson
Roger L. Headrick Director November 26, 1996
- -------------------------------------------
Roger L. Headrick
Harry M. Jansen Kraemer, Jr. Director November 26, 1996
- -------------------------------------------
Harry M. Jansen Kraemer, Jr.
</TABLE>
II-6
<PAGE> 8
EXHIBIT (23)-1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the MedPartners, Inc. Employee Stock
Purchase Plan of our report dated February 22, 1996, with respect to the
consolidated financial statements of MedPartners/Mullikin, Inc. included in
the Prospectus dated October 16, 1996 of MedPartners, Inc., filed with the
Securities and Exchange Commission as part of the Registration Statement on
Form S-1 (Reg. No. 333-13471).
ERNST & YOUNG LLP
Birmingham, Alabama
November 26, 1996
<PAGE> 9
EXHIBIT (23)-2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 pertaining to the MedPartners, Inc. Employee
Stock Purchase Plan of our report dated January 24, 1996, except as to the
third paragraph of Note 14, which is dated as of March 19, 1996, which appears
on page F-29 of the Prospectus of MedPartners, Inc. dated October 16, 1996,
filed as part of the Registration Statement of MedPartners, Inc. on Form S-1
(Registration No. 333-13471).
PRICE WATERHOUSE LLP
Chicago, Illinois
November 26, 1996
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description of Exhibit Page Number
- ---------- ---------------------- -----------
<S> <C> <C>
(4)-1 MedPartners, Inc. Employee Stock Purchase Plan.
(5) Opinion of Haskell Slaughter & Young, L.L.C. as to legality of
the shares of MedPartners, Inc. Common Stock being registered.
(23)-1 Consent of Ernst & Young LLP, Independent Auditors. See pages
immediately following signature pages to the Registration
Statement.
(23)-2 Consent of Price Waterhouse LLP, Independent Accountants. See
pages immediately following signature pages to the Registration
Statement.
(23)-3 Consent of Haskell Slaughter & Young, L.L.C. (contained in the
opinion of counsel filed as Exhibit 5 to this Registration
Statement).
24 Powers of Attorney (set forth on the signature page of this
Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT (4)-1
MEDPARTNERS, INC.
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I
PURPOSE
1.1 PURPOSE. The MedPartners, Inc. Employee Stock Purchase Plan (the
"Plan") has been established to provide eligible employees of MedPartners, Inc.
(the "Company") and its subsidiaries an opportunity to purchase shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), on a
more advantageous basis than would otherwise be available, thereby increasing
their interest in the Company. It is the intention of the Company that the Plan
qualify as an "employee stock purchase plan" under Section 423 of the Internal
Revenue Code of 1986, as amended (the "Code"). The provisions of the Plan shall
be construed in a manner consistent with the requirements of that section of the
Code.
ARTICLE II
DEFINITIONS
As used herein, the following words and phrases shall have the
following meanings:
2.1 "ADMINISTRATION AGENT" shall mean the third-party administration
firm selected by the Board to provide the administrative services with respect
to the Plan as set forth herein.
2.2 "BOARD" shall mean the Board of Directors of the Company.
2.3 "BROKERAGE AGENT" shall mean the registered broker-dealer selected
by the Board to administer the brokerage accounts of Participating Employees.
2.4 "COMMON STOCK" shall mean the Company's Common Stock, par value
$.001 per share.
2.5 The "COMPANY" shall mean MedPartners, Inc., a Delaware corporation,
or its successors.
2.6 "CONTRIBUTION ACCOUNT" shall mean an account established on behalf
of a Participating Employee to which the Participating Employee's contributions
made pursuant to Article V shall be credited.
1
<PAGE> 2
2.7 A Participating Employee's "CONTRIBUTION RATE" shall be the amount
selected by the Participating Employee to be contributed by payroll deduction to
his or her Contribution Account, as outlined in Section 5.5.
2.8 The "EFFECTIVE DATE" of this Plan shall be January 1, 1997. The
"EFFECTIVE DATE" of a particular Employee's enrollment in the Plan shall be the
first day of the calendar quarter following such Employee's election to
participate in the Plan made in accordance with the provisions of Article V,
except that February 1, 1997 shall be the Effective Date of enrollment for
Employees who enroll during the Extended Enrollment Period.
2.9 "EMPLOYEE" shall mean any person who is employed by the Company or
a subsidiary of the Company.
2.10 "EMPLOYEE PLAN YEAR" shall mean the 12-month period following the
Effective Date of a Participating Employee's enrollment in the Plan; provided,
however, that the initial Employee Plan Year for Employees who enroll during the
Extended Enrollment Period shall be the 11-month period from February 1, 1997 to
December 31, 1997.
2.11 The "EXTENDED ENROLLMENT PERIOD" shall mean the period from
December 9, 1996 through December 31, 1996 during which eligible Employees may
enroll in the Plan effective as of February 1, 1997.
2.12 "ISSUE PRICE" shall mean the purchase price of shares of the
Company's Common Stock to be charged to a Participating Employee on the Purchase
Date, as determined in accordance with Section 7.1.
2.13 "MARKET PRICE" shall mean the closing sale price of a share of
Common Stock for the day upon which the Market Price is to be determined as
reported on the National Association of Securities Dealers' New York Stock
Exchange Composite Reporting Tape (or, if the Common Stock is not traded on the
New York Stock Exchange, the closing sale price on the exchange on which it is
traded or as reported by an applicable automated quotation system) (the
"Composite Tape"). Notwithstanding the foregoing, if the Common Stock is no
longer reported on the Composite Tape, the Market Price of the Company's Common
Stock as of a particular date shall be determined using such method as shall be
determined by the Board.
2.14 "PARTICIPATING EMPLOYEE" shall mean any eligible Employee opting
to participate in the Plan.
2.15 "PLAN" shall mean the MedPartners, Inc. Employee Stock Purchase
Plan, as set forth herein, and all subsequent amendments hereto.
2
<PAGE> 3
2.16 "PURCHASE DATE" shall mean the New York Stock Exchange's last
trading date during an Employee Plan Year.
ARTICLE III
ADMINISTRATION
3.1 BOARD'S ADMINISTRATION OF AND AUTHORITY AND RESPONSIBILITIES WITH
RESPECT TO THE PLAN. The Plan shall be administered by the Board. The Board
shall have full power and authority to administer the Plan, to interpret and
construe any provision of the Plan finally and conclusively with respect to all
persons having any interest thereunder, to adopt rules and regulations not
inconsistent with the Plan for carrying out the Plan, providing for matters not
specifically covered thereby, and to alter, amend or revoke any rules or
regulations so adopted; provided, however, that the Administration Agent and
Brokerage Agent shall have the responsibilities with respect to the Plan set
forth below and elsewhere herein. No member of the Board shall be liable to the
Company, any stockholder, any employee of the Company or its subsidiaries or any
participant in the Plan for any action or determination in good faith with
respect to the Plan.
3.2 ADMINISTRATION AND BROKERAGE AGENTS. The Board will select and
designate a third-party administration firm and a registered broker-dealer to
provide the administrative and brokerage services, respectively, with respect to
the Plan as set forth herein. The Board may from time to time replace and
redesignate either the Administration Agent or the Brokerage Agent.
ARTICLE IV
SHARES SUBJECT TO PLAN
4.1 SHARES SUBJECT TO PLAN. The Company hereby reserves 5,000,000
shares of Common Stock for issuance under the Plan. These shares shall be
authorized and unissued shares. To the extent provided by resolution of the
Board, such shares may be uncertificated.
4.2 ADJUSTMENTS TO SHARES RESERVED. In the event of any merger,
consolidation, reorganization, recapitalization, spin-off, stock dividend, stock
split, reverse stock split, exchange or other distribution with respect to
shares of Common Stock or other change in the corporate structure or
capitalization affecting the Common Stock, the type and number of shares of
stock which are or may be subject to the Plan or contributed amounts under the
Plan shall be equitably adjusted by the Board, in its sole discretion, to
preserve the value of benefits under the Plan.
3
<PAGE> 4
ARTICLE V
ELIGIBILITY AND ENROLLMENT
5.1 INITIAL ELIGIBILITY. Subject to the limitations set forth below,
every Employee of the Company and its subsidiaries who has been employed by the
Company or a subsidiary for at least the 60 consecutive days preceding the
Effective Date of such person's enrollment is eligible to participate in the
Plan.
5.2 LIMITATIONS ON PARTICIPATION. Notwithstanding any provisions of the
Plan to the contrary, no Employee shall be entitled to participate, select a
Contribution Rate, contribute amounts to his or her Contribution Account or
otherwise purchase Common Stock under the Plan (or any other employee stock
purchase plan of the Company and its subsidiaries, if any) to the extent:
(a) that such participation, contribution or purchase, as the
case may be, is at a rate that exceeds $25,000 in fair market value of
the Common Stock in any calendar year (as determined under Section 423
of the Code); or
(b) that, giving effect to such participation, contribution
or purchase, as the case may be, such Employee would own or
beneficially own Common Stock possessing five percent or more of the
total combined voting power or value of all classes of stock of the
Company.
5.3 ENROLLMENT. The Company or the Administration Agent shall furnish
information relating to the Plan and Plan enrollment to each Employee who is or
becomes eligible to participate. If the Employee elects to participate in the
Plan (and thus become a Participating Employee), he or she shall enroll
according to the enrollment procedures set forth in the information provided by
the Company or the Administration Agent. Upon enrollment, the Company or the
Administration Agent will provide a confirmation statement to the Participating
Employee. If an eligible Employee does not elect to participate as of the first
calendar quarter available for such Employee's election (or as of February 1,
1997 by enrolling during the Extended Enrollment Period), the Employee may
nonetheless elect to participate commencing with any subsequent calendar
quarter.
5.4 EFFECTS OF ENROLLMENT. Enrollment in the Plan is for one year from
the Effective Date of enrollment (the "Employee Plan Year"), except that
enrollment during the Extended Enrollment Period shall be for the 11-month
period ended December 31, 1997. Amounts contributed by the Participating
Employee will be applied to the purchase of shares of Common Stock in accordance
with the provisions of Article VII at the end of such Employee Plan Year.
Enrollment continues, and is automatically renewed at the end of an Employee
Plan Year for an additional Employee Plan Year, unless and until payroll
deductions and Plan participation have been specifically discontinued in
accordance with the provisions of Article VI.
4
<PAGE> 5
5.5 PARTICIPATING EMPLOYEE'S CONTRIBUTION RATE. In order to participate
in the Plan, an Employee must elect to participate in accordance with Section
5.3 and must authorize the Company or its subsidiary, as applicable, to deduct
from payroll on behalf of such Participating Employee a specified amount per pay
period. Such amount may not be less than $5.00 nor more than $800.00 per pay
period; provided, however, that such minimum and maximum amounts may be adjusted
by the Company at any time and from time to time for the sake of administrative
convenience and/or to ensure continued compliance with the provisions of Section
423 of the Code.
ARTICLE VI
DEDUCTIONS, MODIFICATIONS & PLAN WITHDRAWAL
6.1 DEDUCTIONS. Payroll deductions at the Participating Employee's
Contribution Rate shall begin on the first pay date following the Effective Date
of such Participating Employee's enrollment in the Plan. The Participating
Employee's contributions shall be allocated to and deemed a part of the
Participating Employee's Contribution Account. Participating Employee
contributions will not be permitted to begin at any time other than the
beginning of a calendar quarter (except for contributions by enrollees during
the Extended Enrollment Period, which will begin following February 1, 1997). No
interest shall accrue or be paid on any amounts withheld under the Plan.
6.2 MODIFICATIONS IN CONTRIBUTION RATE. The Participating Employee's
Contribution Rate, once established, shall remain in effect for all of the
Employee Plan Year and subsequent Employee Plan Years unless changed by the
Participating Employee in the manner specified by the Company or the
Administration Agent. Notwithstanding anything herein to the contrary, a
Participating Employee may only reduce his or her Contribution Rate during any
Employee Plan Year. The Contribution Rate may not be increased during an
Employee Plan Year.
6.3 DISCONTINUING CONTRIBUTIONS. At any time during an Employee Plan
Year, a Participating Employee may notify the Company or the Administration
Agent that he or she wishes to discontinue his or her contributions for such
Employee Plan Year. This notice shall be communicated in the manner specified by
the Company or the Administration Agent. A Participating Employee who has
discontinued contributions under the Plan may not resume contributions until his
or her Employee Plan Year has expired.
6.4 WITHDRAWAL FROM PLAN. At any time, a Participating Employee may
notify the Company or the Administration Agent that he or she wishes to
discontinue participation in the Plan. This notice shall be communicated in the
manner specified by the Company or the Administration Agent. A Participating
Employee who has discontinued participation in the Plan may not re-enroll in the
Plan until his or her Employee Plan Year has expired. Upon withdrawal from the
Plan pursuant to this Article
5
<PAGE> 6
VI, the Employee shall be issued a payroll check in the amount of his or her
Contribution Account as of the effective date of withdrawal as soon as
administratively feasible.
ARTICLE VII
PURCHASE OF COMMON STOCK
7.1 PURCHASES. On each Purchase Date (which shall be the last trading
day of each Employee Plan Year), the funds in a Participating Employee's
Contribution Account shall be used to purchase the maximum number of whole
shares of Common Stock determined by dividing the Issue Price into the balance
in such Contribution Account (subject to the limitations set forth in Section
7.2). The Issue Price of the shares of Common Stock issued under the Plan shall
be equal to the lesser of: (i) 85% of the Market Price on the last trading date
(or "Purchase Date") of an Employee Plan Year, or (ii) 85% of the Market Price
on the first trading date of an Employee Plan Year. Any funds remaining in a
Participating Employees' Contribution Account following the purchase shall be
determined by the Brokerage Agent and returned to the Participating Employee,
without interest, in accordance with such procedures as the Brokerage Agent may
establish.
7.2 OVER-ALLOTMENTS. If the total number of shares to be purchased by
all Participating Employees on a Purchase Date exceeds the number of shares
authorized under Article IV of the Plan, a pro-rata allocation of the available
shares will be made among all Participating Employees based on the amount of the
balances in their respective Contribution Accounts through the Purchase Date.
7.3 ISSUED SHARES. A Participating Employee's shares of Common Stock
will be deposited in a brokerage account opened on behalf of the Participating
Employee with the Brokerage Agent. All fees and commissions associated with the
operation of such brokerage account shall be the responsibility of the
Participating Employee.
ARTICLE VIII
CHANGES IN STATUS AFFECTING ELIGIBILITY
8.1 TERMINATION OF EMPLOYMENT. Effective upon the termination of the
Participating Employee's employment for any reason, including without limitation
death or retirement, such person's participation in the Plan shall be deemed
discontinued and authorized payroll deductions credited to his or her
Contribution Account will be returned to him or her in accordance with the
provisions of Section 6.4.
8.2 TEMPORARY ABSENCE. If a Participating Employee temporarily leaves
the employ of the Company or its subsidiaries by reason of leave of absence,
temporary lay-off or temporary disability, the Participating Employee may, for a
period of up to 180 days, continue his or her participation in the Plan. During
any such period, the
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Participating Employee shall make regular payments to the Administration Agent
(in lieu of payroll deductions) at the applicable Contribution Rate (as may or
may not be adjusted pursuant to Article VI), and such amounts shall be credited
to the Participating Employee's Contribution Account. To the extent a Purchase
Date occurs during such continuation period, amounts in the Contribution Account
shall be applied to the purchase of shares of Common Stock as herein provided.
However, notwithstanding anything herein to the contrary, if the Participating
Employee has not resumed employment with the Company or its subsidiaries when
such 180-day period has ended, he or she shall be treated as having discontinued
his or her participation in the Plan as of such date, and the balance in his or
her Contribution Account will be returned.
ARTICLE IX
GENERAL PROVISIONS
9.1 TERM OF PLAN. Subject to the approval of the stockholders of the
Company, this Plan will become effective on the Effective Date. The Plan shall
remain in effect until all of the shares of Common Stock reserved for issuance
hereunder have been issued and balances maintained in the Participating Employee
Contribution Accounts have been distributed, unless earlier terminated by the
Board.
9.2 AMENDMENT OR TERMINATION BY BOARD. The Board may at any time or
from time to time amend the Plan in any respect. The Board may terminate the
Plan at any time. If the Plan is terminated, unless otherwise specified, the
date of termination shall be treated as a Purchase Date. All funds in
Participating Employee Contribution Accounts as of the termination date which
are not applied toward purchases of shares of Common Stock shall be refunded to
the Participating Employees.
9.3 TRANSFERABILITY. Neither the right of an Employee to purchase
shares of Common Stock hereunder, nor such Participating Employee's Contribution
Account balance, may be transferred, pledged or assigned by the Employee
(except, in the event of the Employee's death, by will or the laws of descent
and distribution). Any such attempted transfer, pledge, assignment or other
disposition shall be treated as an election of the Participating Employee to
discontinue his or her participation in the Plan.
9.4 COMPLIANCE WITH SECURITIES LAWS. Notwithstanding any other
provision of the Plan, the Company shall have no obligation to issue any shares
of Common Stock under the Plan unless such issuance would comply with all
applicable laws, including Federal and state securities laws, and the applicable
regulations or requirements of any securities exchanges or similar entities.
9.5 INVESTMENT INTENT. Prior to the issuance of any shares of Common
Stock under the Plan, the Company may require a written statement that the
recipient is acquiring the shares for investment and not for the purpose or with
the intention of distributing the shares and will not dispose of them in
violation of the registration
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requirements of the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
9.6 COMPLIANCE WITH SECTION 16(B). With respect to any person who is
subject to Section 16(a) of the Securities Exchange Act of 1934, as amended, the
Board may, at any time, add such conditions and limitations respecting
eligibility or participation under the Plan as it deems necessary or desirable
to comply with the requirements of Rule 16b-3 thereunder; provided, however,
that any rights or privileges that are extended to such persons shall be
extended uniformly to all eligible employees.
9.7 WITHHOLDING TAXES. Amounts withheld, shares issued and payments
made pursuant to the Plan may be subject to withholding taxes, and the Company
and its subsidiaries shall have the right to withhold from any payment or
distribution of shares or to collect as a condition of any payment or
distribution under the Plan, as applicable, any taxes required by law to be
withheld.
9.8 NO CONTINUED EMPLOYMENT. The Plan does not constitute a contract of
employment or continued service, and participation in the Plan will not give any
Employee the right to be retained in the employ of the Company or any right or
claim to any benefit under the Plan unless such right or claim has specifically
accrued under the terms of the Plan.
9.9 TREATMENT AS STOCKHOLDER. Any contribution made by a Participating
Employee under the Plan shall not create any rights in such Participating
Employee as a stockholder of the Company until shares of Common Stock are
registered in the name of such person.
9.10 VOTING OF ISSUED SHARES. The Brokerage Agent will vote the Common
Stock held in brokerage accounts on behalf of Participating Employees in
accordance with instructions received from such Participating Employees. The
Brokerage Agent will transmit to Participating Employees all proxy material and
other reports furnished by the Company to its stockholders.
9.11 GOVERNING LAW. The law of the State of Delaware will govern all
matters relating to this Plan except to the extent it is superseded by the laws
of the United States.
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EXHIBIT (5)
[HASKELL SLAUGHTER & YOUNG L.L.C.
LETTERHEAD]
November 26, 1996
MedPartners, Inc.
3000 Galleria Tower, Suite 1000
Birmingham, Alabama 35244-2331
Re: Registration Statement on Form S-8 - MedPartners, Inc.
Employee Stock Purchase Plan
Our File No. 48367-066
Gentlemen:
We have served as counsel for MedPartners, Inc., a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 5,000,000 shares (the
"Shares") of the Company's authorized Common Stock, par value $.001 per share,
to be issued to participants in the MedPartners, Inc. Employee Stock Purchase
Plan (the "Plan") pursuant to the Company's Registration Statement on Form S-8
(the "Registration Statement"). This opinion is furnished to you pursuant to
the requirements of Form S-8.
In connection with this opinion, we have examined and are familiar with
originals or copies (certified or otherwise identified to our satisfaction) of
such documents, corporate records and other instruments relating to the
incorporation of the Company and to the authorization and issuance of the
Shares and the authorization and adoption of the Plan as we have deemed
necessary and appropriate.
Based upon the foregoing, and having regard for such legal
considerations as we have
<PAGE> 2
MedPartners, Inc.
November 26, 1996
Page 2
deemed relevant, it is our opinion that:
1. The Shares have been duly authorized.
2. Upon issuance, sale and delivery of the Shares as contemplated
in the Registration Statement and the Plan, the Shares will be
legally issued, fully paid and nonassessable.
We do hereby consent to the reference to our firm under the heading
"Legal Matters" in the Registration Statement and to the filing of this Opinion
as an Exhibit thereto.
Very truly yours,
HASKELL SLAUGHTER & YOUNG, L.L.C.
By /s/ Robert E. Lee Garner
------------------------------
Robert E. Lee Garner
