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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
AMENDMENT NO. 1 TO FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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MEDPARTNERS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 63-1151076
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
3000 GALLERIA TOWER
SUITE 1000
BIRMINGHAM, ALABAMA 35244
(Address of principal executive offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective pursuant Exchange Act and is effective pursuant
to General Instruction A.(c), please to General Instruction A.(d), please
check the following box. [X] check the following box. [ ]
<TABLE>
<S> <C>
Securities Act registration statement file number to which this form
relates _______________
(If applicable)
</TABLE>
Securities to be registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of Each Class to Name of Each Exchange on Which
be so Registered Each Class is to be Registered
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<S> <C>
Common Stock, par value $.001 per share New York Stock Exchange, Inc
</TABLE>
Securities to be registered pursuant to Section 12(g) of the Act:
None
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(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Authorized Capital Stock
The MedPartners, Inc. ("Registrant") Third Restated Certificate of
Incorporation (the "Certificate") provides that the Registrant may issue
9,500,000 shares of Preferred Stock, par value $.001 per share (the "Preferred
Stock"), 500,000 shares of Series C Preferred Stock, par value $.001 per share
(the "Series C Preferred Stock"), and 400,000,000 shares of Common Stock, par
value $.001 per share (the "Common Stock).
Common Stock
Holders of the Common Stock are entitled to one vote for each share
held of record for the election of members to the board of directors of the
Registrant (the "Board") and on all matters to be submitted to a vote of the
stockholders and do not have preemptive rights. Subject to preferences that may
be applicable to any outstanding shares of Preferred Stock, holders of Common
Stock are entitled to receive ratably such dividends, if any, as may be declared
from time to time by the Board out of funds legally available therefor. All
outstanding shares of Common Stock are fully paid and nonassessable. In the
event of any liquidation, dissolution or winding-up of the affairs of the
Registrant, holders of Common Stock will be entitled to share ratably in the
assets of the Registrant remaining after payment or provision for payment of all
of Registrant's debts and obligations and liquidation payments to holders of any
outstanding shares of Preferred Stock.
Preferred Stock
The Board, without further stockholder authorization, is authorized to
issue shares of Preferred Stock in one or more series and to determine and fix
the rights, preferences and privileges of each series, including dividend rights
and preferences over dividends on the Common Stock and one or more series of
Preferred Stock, conversion rights, voting rights (in addition to those provided
by law), redemption rights and the terms of any sinking fund therefor, and
rights upon liquidation, dissolution or winding up, including preferences over
the Common Stock and one or more series of Preferred Stock. The issuance of
shares of Preferred Stock, or the issuance of rights to purchase such shares,
may have the effect of delaying, deferring or preventing a change in control of
Registrant or an unsolicited acquisition proposal. See "Stockholder Rights
Plan."
Certain Provisions of the Certificate of Incorporation and the DGCL.
Classified Board of Directors. The Certificate and the Second Amended
and Restated Bylaws as amended, by the First Amendment to the Second Amended and
Restated Bylaws (the "Bylaws") provide for the Board to be divided into three
classes of directors, as nearly equal in number as is reasonably possible,
serving staggered three year terms so that approximately one-third of the
director's term expire at each annual meeting of stockholders of Registrant.
Registrant believes that a classified board of directors will help to
assure the continuity and stability of the Board and Registrant's business
strategies and policies as determined by the Board since a majority of the
directors at any given time will have had prior experience as directors of
Registrant. Registrant believes that this, in turn, will permit the Board to
more effectively represent the interests of stockholders.
With a classified board of directors, at least two annual meetings of
stockholders, instead of one, will generally be required to effect a change in
the majority of the Board. As a result, a provision relating to a classified
Board may discourage proxy contests for the election of directors or purchases
of a substantial block of the Common Stock because its provisions could operate
to prevent obtaining control of the Board in a relatively short period of time.
The classification provision could also have the effect of discouraging a third
party from making a tender offer or otherwise attempting to obtain control of
Registrant. Under the DGCL, unless the certificate of incorporation otherwise
provides, a director on a classified board may be removed by the stockholders of
the corporation only for cause. The Certificate does not provide otherwise.
Advance Notice Provisions for Stockholder Nominations of Directors and
other Business at Stockholder Meetings. The Bylaws establish an advance notice
procedure with regard to the nomination, other than by or at the direction of
the Board or a committee thereof, of candidates
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for election as directors (the "Nomination Procedure") and with regard to other
matters to be brought by stockholders before an annual meeting of stockholders
of Registrant (the "Business Procedure").
The Nomination Procedure requires that a stockholder give prior written
notice, in proper form, of a planned nomination for the Board to the Corporate
Secretary of Registrant. The requirements as to the form and timing of that
notice are specified in the Bylaws. If the Chairman of the Board determines that
a person was not nominated in accordance with the Nomination Procedure, such
person will not be eligible for election as a director.
Under the Business Procedure, a stockholder seeking to have any
business conducted at an annual meeting must give prior written notice, in
proper form, to the Corporate Secretary of Registrant. The requirements as to
the form and timing of that notice are specified in the Bylaws. If the Chairman
of the Board determines that the other business was not properly brought before
such meeting in accordance with the Business Procedures, such business will not
be conducted at such meeting.
Although the Bylaws do not give the Board any power to approve or
disapprove stockholder nominations for the election of directors or of any other
business desired by stockholders to be conducted at an annual or any other
meeting, the Bylaws (i) may have the effect of precluding a nomination for the
election of directors or precluding the conduct of business at a particular
annual meeting if the proper procedures are not followed or (ii) may discourage
or deter a third party from conducting a solicitation of proxies to elect its
own slate of directors or otherwise attempting to obtain control of Registrant.
Delaware Takeover Statute. Registrant is subject to Section 203 of the
DGCL which, subject to certain exceptions, prohibits a Delaware corporation from
engaging in any of a broad range of business combinations with any "interested
stockholder" for a period of three years following the date that such
stockholder became an interested stockholder, unless: (i) prior to such date,
the board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder; (ii) upon consummation of the transaction which resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding, for purposes of
determining the number of shares outstanding, those shares owned (a) by persons
who are directors and also officers and (b) by employee stock plans in which
employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange offer;
or (iii) at or subsequent to such time, the business combination is approved by
the board of directors and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least 66
2/3% of the outstanding voting stock which is not owned by the interested
stockholder. An "interested stockholder" is defined as any person that is (a)
the owner of 15% or more of the outstanding voting stock of the corporation or
(b) an affiliate or associate of the corporation and was the owner of 15% or
more of the outstanding voting stock of the corporation at any time within the
three-year period immediately prior to the date on which it is sought to be
determined whether such person is an interested stockholder.
Stockholder Rights Plan
The Registrant has entered into a Stockholders' Rights Agreement
granting holders of Common Stock certain rights (the "Rights Plan"). A
description of the Rights Plan is contained in the Registration Statement filed
with the Securities and Exchange Commission (the "Commission") on Form 8-A under
the Securities Exchange Act of 1934 (the "Exchange Act") on July 11, 1997, which
is incorporated herein by this reference. Such description is qualified in its
entirety by the MedPartners, Inc. Stockholders' Rights Plan, as amended by
Amendment No. 1. to the Stockholders' Rights Plan of MedPartners, Inc. and
Amendment No. 2 to the Stockholders' Rights Plan of MedPartners, Inc. each of
which are incorporated, by reference, as exhibits to this Registration
Statement.
ITEM 2. EXHIBITS.
3.1 MedPartners, Inc. Third Restated Certificate of Incorporation,
filed as Exhibit (3)-1 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996, is hereby
incorporated herein by reference.
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3.2 Second Amended and Restated Bylaws of MedPartners, Inc. filed
as Exhibit (3)-2 to the Registrant's Registration Statement
filed on Form S-1 (Registration No. 333-12465) as amended by
Form S-1/A filed on October 3, 1996, is hereby incorporated
herein by reference.
3.3 First Amendment to the Second Amended and Restated Bylaws of
MedPartners.
4.1 MedPartners, Inc. Stockholders' Rights Plan, filed as Exhibit
(4)-1 to Registrant's Registration Statement on Form S-4
(Registration No. 333-00774) is hereby incorporated by
reference.
4.2 Amendment No. 1 to the Stockholders' Rights Plan of
MedPartners, Inc., filed as Exhibit (4)-2 to Registrant's
Annual Report on Form 10-K for the fiscal year ended December
31, 1996, is hereby incorporated herein by reference.
4.3 Amendment No. 2 to the Stockholders' Rights Plan of
MedPartners, Inc., filed as Exhibit (4)-2 to Registrant's
Registration Statement on Form S-3 (Registration No.
333-17339), is hereby incorporated herein by reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereto duly authorized.
MEDPARTNERS, INC.
/s/ E. Mac Crawford
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By: E. Mac Crawford
President and Chief Executive Officer
Date: September 11, 1998
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EXHIBIT 3.3
First Amendment to the Second Amended and Restated Bylaws of MedPartners.
Article IX of the Bylaws is hereby deleted in its entirety and the
following shall be substituted therefor:
ARTICLE IX
INDEMNIFICATION
1. Mandatory Indemnification of Directors and Officers.
a. The Corporation shall indemnify, and shall pay in
advance the expenses of, each Director and officer of the Corporation and each
person who is serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise to
the fullest extent permissible under Delaware law, as the same exists or may
hereafter exist in the future (but, in the case of any future change, only to
the extent that such change permits the Corporation to provide broader
indemnification rights than the law permitted prior to such change) and such
obligation to indemnify and to advance expenses shall continue as to a person
who has ceased to be a Director or officer of the Corporation or a director or
officer of any other such corporation, partnership, joint venture, trust or
other enterprise and shall inure to the benefit of his or her heirs, executors
and administrators.
b. If a claim under Section 1(a) of this Article IX is
not paid in full by the Corporation within thirty (30) days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim and, if successful in whole or in part, the claimant shall be entitled
to be paid also the expense of prosecuting such claim. Neither the failure of
the Corporation (including its Board of Directors, independent legal counsel, or
its stockholders) to have made a determination that indemnification of the
claimant is permissible in the circumstances because the claimant has met the
applicable standard of conduct, if any, nor an actual determination by the
Corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met the standard of conduct, shall be a
defense to the action or create a presumption that the claimant has not met the
standard of conduct.
2. Discretionary Indemnification of Employees and Agents.
The Corporation may, but shall have no obligation to, indemnify and may
pay in advance the expenses of employees and agents of the Corporation and
persons who are serving at the request of the Corporation as an employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise to the fullest extent permissible under Delaware law and to the
extent approved by the Board of Directors from time to time.
3. Expenses as a Witness.
To the extent that any Director, officer, employee or agent of the
Corporation, or any person who is serving at the request of the Corporation as
an officer, director, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise is by reason of such position, or
position with such other entity, a witness in any action, suit or proceeding, he
or she shall be indemnified against all costs and expenses actually and
reasonably incurred by him or her or on his or her behalf in connection
therewith.
4. Insurance.
The Corporation may maintain insurance, at its expense, to protect
itself and any Director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any such expenses, liability or loss, whether or not the Corporation
would have the power to indemnify such person against such expense, liability or
loss under Delaware law.
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5. Indemnity Agreements.
The Corporation may enter into agreements with any Director, officer,
employee or agent of the Corporation and with any person who is or was serving
at the request of the Corporation as an officer, director, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
providing for indemnification to the fullest extent permissible under Delaware
law.
6. Separability.
Each and every paragraph, sentence, term and provision of this Article
IX is separate and distinct, so that if any paragraph, sentence, term or
provision hereof shall be held to be invalid or unenforceable for any reason,
such invalidity or unenforceability shall not affect the validity or
unenforceability of any other paragraph, sentence, term or provision hereof. To
the extent required, any paragraph, sentence, term or provision of this Article
IX may be modified by a court of competent jurisdiction to preserve its validity
and to provide the claimant with, subject to the limitations set forth in this
Article IX and any agreement between the Corporation and claimant, the broadest
possible indemnification permitted under applicable law.
7. Contract Right.
Each of the rights conferred by Sections 1 and 3 of this Article IX
shall be a contract right and any repeal or amendment of the provisions of this
Article shall not adversely affect any right hereunder of any person existing at
the time of such repeal or amendment with respect to any act or omission
occurring prior to the time of such repeal or amendment, and, further, shall not
apply to any proceeding, irrespective of when the proceeding is initiated,
arising from the service of such person prior to such repeal or amendment.
Further, the mandatory indemnification and expense advancement for officers of
the Corporation and such other persons who serve at the request of the
Corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise set forth in Section 1 of this Article IX
shall apply solely with respect to acts or omissions of such officers and
directors occurring on or after August 6, 1998.
8. Nonexclusivity.
The rights conferred in this Article shall not be exclusive of any
other rights that any person may have or hereafter acquire under any statute,
bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
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