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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 3, 1997
REGISTRATION STATEMENT NO. 333-21475
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MEDPARTNERS, INC.
(Exact Name of Registrant as Specified in its Charter)
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<S> <C> <C>
DELAWARE 63-1151076
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification Number)
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3000 GALLERIA TOWER, SUITE 1000
BIRMINGHAM, ALABAMA 35244
(205) 733-8996
(Address, including Zip Code, and Telephone Number, including Area Code, of
Registrant's Principal Executive Offices)
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LARRY R. HOUSE
CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
3000 GALLERIA TOWER, SUITE 1000
BIRMINGHAM, ALABAMA 35244
TEL: (205) 733-8996
FAX: (205) 733-1568
(Name, Address, including Zip Code, and Telephone Number, including Area Code,
of Agent for Service)
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COPIES OF COMMUNICATIONS TO:
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<C> <C>
J. BROOKE JOHNSTON, JR., ESQ. ROBERT E. LEE GARNER, ESQ.
SENIOR VICE PRESIDENT & GENERAL COUNSEL F. HAMPTON MCFADDEN, JR., ESQ.
MEDPARTNERS, INC. JAMES H. SINNOTT, ESQ.
3000 GALLERIA TOWER, SUITE 1000 HASKELL SLAUGHTER & YOUNG, LLC
BIRMINGHAM, ALABAMA 35244-2331 1200 AMSOUTH/HARBERT PLAZA
TEL: (205) 733-8996 1901 SIXTH AVENUE NORTH
FAX: (205) 982-7709 BIRMINGHAM, ALABAMA 35203
TEL: (205) 251-1000
FAX: (205) 324-1133
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate of the fees and expenses to be incurred in
connection with the issuance and distribution of the shares of Common Stock, par
value $.001 per share (the "Common Stock"), offered hereby.
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Securities and Exchange Commission Registration Fee......... $ 35,067.18
Legal Fees and Expenses..................................... $ 15,000
Accounting Fees............................................. $ 10,000
Printing Costs.............................................. $ 60,000
Miscellaneous Expenses...................................... $ 10,000
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Total............................................. $130,067.18
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* Actual amount.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the General Corporation Law of Delaware ("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 Third 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 of loyalty 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 Commission 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 agreed to indemnify all of its directors and executive
officers against liability incurred by them by reason of their services as 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.
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ITEM 16. FINANCIAL STATEMENTS AND EXHIBITS
(a) Exhibits:
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EXHIBIT
NO. DESCRIPTION
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(2)-1 -- Agreement and Plan of Merger, dated as of January 20, 1997
as amended by Amendment No. 1 dated as of May 21, 1997,
among MedPartners, Inc., SeaBird Merger Corporation and
InPhyNet Medical Management Inc., filed as Exhibit (2)-1
to the Company's Registration Statement on Form S-4
(Registration No. 333-24639), is hereby incorporated
herein by reference.
(4)-1 -- MedPartners, Inc. Rights Agreement, filed as Exhibit (4)-1
to the Company's Registration Statement on Form S-4
(Registration No. 33-00774), is hereby incorporated
herein by reference.
(4)-2 -- Amendment No. 1 to the Rights Plan of MedPartners, Inc.,
filed as Exhibit (4)-2 to the Company's Annual Report on
Form 10-K for the Year ended December 31, 1996, is hereby
incorporated herein by reference.
(4)-3 -- Amendment No. 2 to the Rights Agreement of MedPartners,
Inc., filed as Exhibit (4)-2 to the Company's
Registration Statement on Form S-3 (Registration No.
333-17339), is hereby incorporated herein by reference.
(5) -- Opinion of Haskell Slaughter & Young L.L.C., as to the
legality of the Common Stock of the Company.
(23)-1 -- Consent of Ernst & Young LLP. See pages immediately
following signature pages to the Registration Statement.
(23)-2 -- Consent of Haskell Slaughter & Young L.L.C. (included in the
opinion filed as Exhibit (5)).
(24) -- Powers of Attorney. See the signature pages to the original
filing of this Registration Statement.
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(b) Financial Statements Schedule:
None are applicable.
ITEM 17. 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;
(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 volume of securities offered (if the total
dollar value of securities offered would not exceed that 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) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent 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;
(2) For the purpose of determining any liability under the Securities
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.
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(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 Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to Item 14 hereof, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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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-3 and has duly caused this Amendment No. 2 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Birmingham, State of Alabama on June
3, 1997.
MEDPARTNERS, INC.
By /s/ LARRY R. HOUSE
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Larry R. House
Chairman of the Board, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
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SIGNATURE CAPACITY DATE
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/s/ LARRY R. HOUSE Chairman of the Board, June 3, 1997
- ----------------------------------------------------- President and Chief
Larry R. House Executive Officer and
Director
* Executive Vice President and June 3, 1997
- ----------------------------------------------------- Chief Financial Officer
Harold O. Knight, Jr. (Principal Financial and
Accounting Officer)
* Director June 3, 1997
- -----------------------------------------------------
Richard M. Scrushy
* Director June 3, 1997
- -----------------------------------------------------
Larry D. Striplin, Jr.
* Director June 3, 1997
- -----------------------------------------------------
Charles W. Newhall III
* Director June 3, 1997
- -----------------------------------------------------
Ted H. McCourtney
* Director June 3, 1997
- -----------------------------------------------------
Walter T. Mullikin, M.D.
* Director June 3, 1997
- -----------------------------------------------------
John S. McDonald, J.D.
* Director June 3, 1997
- -----------------------------------------------------
Richard J. Kramer
* Director June 3, 1997
- -----------------------------------------------------
Rosalio J. Lopez, M.D.
* Director June 3, 1997
- -----------------------------------------------------
C.A. Lance Piccolo
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* Director June 3, 1997
- ------------------------------------------------------
Roger L. Headrick
* Director June 3, 1997
- ------------------------------------------------------
Harry M. Jansen Kraemer, Jr.
*By /s/ LARRY R. HOUSE
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Larry R. House
Attorney-in-Fact
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EXHIBIT (23)-1
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the captions "Experts" in the
Registration Statement (Form S-3, No. 333-21475) and the related Prospectus of
MedPartners, Inc. for the registration of shares of its Common Stock and the
incorporation by reference therein of our report dated February 3, 1997, with
respect to the consolidated financial statements of MedPartners, Inc. for the
year ended December 31, 1996, included in its Annual Report on Form 10-K/A for
the year ended December 31, 1996, and our report dated February 14, 1997,
(except for the second paragraph of Note 4, as to which the date is May 20,
1997) with respect to the consolidated financial statements of InPhyNet Medical
Management Inc. and Subsidiaries, included in its Annual Report (Form 10-K/A)
for the year ended December 31, 1996, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Birmingham, Alabama
May 30, 1997
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EXHIBIT INDEX
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SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
- -------- ----------- ------------
<C> <S> <C> <C>
(2)-1 -- Agreement and Plan of Merger, dated as of January 20, 1997
as amended by Amendment No. 1 dated as of May 21, 1997,
among MedPartners, Inc., Seabird Merger Corporation and
InPhyNet Medical Management Inc., filed as Exhibit (2)-1
to the Company's Registration Statement on Form S-4
(Registration No. 333-24639), is hereby incorporated
herein by reference.
(4)-1 -- MedPartners, Inc. Rights Agreement, filed as Exhibit (4)-1
to the Company's Registration Statement on Form S-4
(Registration No. 333-00774), is hereby incorporated by
reference herein.
(4)-2 -- Amendment No. 1 to the Rights Plan of MedPartners, Inc.,
filed as Exhibit (4)-2 to the Company's Annual Report on
Form 10-K for the Year ended December 31, 1996, is hereby
incorporated herein by reference.
(4)-3 -- Amendment No. 2 to the Rights Agreement of MedPartners,
Inc., filed as Exhibit (4)-2 to the Company's
Registration Statement on Form S-3 (Registration No.
333-17339), is hereby incorporated herein by reference.
(5) -- Opinion of Haskell Slaughter & Young L.L.C., as to the
legality of the Common Stock of the Company
(23)-1 -- Consent of Ernst & Young LLP. See pages immediately
following signature pages to the Registration Statement.
(23)-2 -- Consent of Haskell Slaughter & Young L.L.C. (included in the
opinion filed as Exhibit (5)).
(24) -- Powers of Attorney. See the signature pages to the original
filing of this Registration Statement.
</TABLE>
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Exhibit (5)
[Haskell Slaughter & Young, LLC letterhead]
June 3, 1997
MedPartners, Inc.
3000 Galleria Tower, Suite 1000
Birmingham, Alabama 35244
RE: MEDPARTNERS, INC.--
REGISTRATION STATEMENT ON FORM S-3
(OUR FILE NO. 48367-072)
Gentlemen:
We have served as counsel for MedPartners, Inc., a Delaware corporation
(the "Company" or the "Issuer"), in connection with the registration under the
Securities Act of 1933, as amended (the "Act"), of an aggregate of 5,994,594
shares (the "Shares") of the Company's authorized Common Stock, par value $.001
per share, for the account of certain selling stockholders pursuant to
Amendment No. 2 to the Company's Registration Statement on Form S-3 (Commission
File No. 333-21475) filed under the Act with the Securities and Exchange
Commission on June 3, 1997 (the "Registration Statement"). This opinion is
furnished to you pursuant to the requirements of Form S-3.
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 the authorization and issuance
of the Shares as we have deemed necessary and appropriate.
Based upon the foregoing, and having regard for such legal
considerations as we have deemed relevant, it is our opinion that:
1. The Shares have been duly authorized and issued; and
2. Upon sale and delivery of the Shares as contemplated in the
Registration Statement, 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 Prospectus which forms a part of 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
