<PAGE> 1
As filed with the Securities and Exchange Commission on September 10, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
AMERICAN PHYSICIAN PARTNERS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 75-2648089
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3600 Chase Tower, 2200 Ross Avenue
Dallas, Texas 75201
(Address of Principal Executive Offices) (Zip Code)
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AMERICAN PHYSICIAN PARTNERS, INC.
1996 STOCK OPTION PLAN, AS AMENDED
THE NOTICE OF GRANT OF STOCK OPTION AND OPTION AGREEMENTS
BETWEEN AMERICAN PHYSICIAN PARTNERS, INC. AND
VARIOUS EMPLOYEES
(Full title of the Plan)
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MARK L. WAGAR
CHIEF EXECUTIVE OFFICER
3600 CHASE TOWER, 2200 ROSS AVE.
DALLAS, TEXAS 75201
(Name and address of agent for service)
(214) 303-2776
(Telephone number, including area code, of agent for service)
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With copies to:
PAUL M. JOLAS TOM D. HARRIS
GENERAL COUNSEL HAYNES AND BOONE, LLP
3600 CHASE TOWER 901 MAIN STREET
2200 ROSS AVENUE SUITE 3100
DALLAS, TEXAS 75201 DALLAS, TEXAS 75202-3789
(214) 303-2776 (214) 651-5000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE REGISTERED(1) PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.0001 par value........... 1,334,576 $7.8750(2) $10,509,786(2) $2,922
Common Stock
$.0001 par value........... 2,402,381(3) $7.0631(3) $16,968,257(3) $4,717
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TOTAL:................. 3,736,957 -- $27,478,043 $7,639
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</TABLE>
(1) The amount to be registered also includes such indeterminate number of
shares as may be issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions in accordance with Rule 416
promulgated under the Securities Act of 1933.
(2) The offering price per share, the aggregate offering price and the
registration fee is calculated in accordance with paragraphs (c) and
(h)(1) of Rule 457 promulgated under the Securities Act of 1933 based on
the average of the high and low sale prices for the Company's Common Stock
reported on the Nasdaq National Market System on September 7, 1999 ($7.8750
per share).
(3) Represents shares of American Physician Partners, Inc. issuable upon the
exercise of outstanding stock options previously granted under the 1996
Stock Option Plan at the weighted average exercise price for such
outstanding options pursuant to Rule 457(h)(1).
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<PAGE> 2
AMERICAN PHYSICIAN PARTNERS, INC.
3,736,957 Shares of Common Stock
PART II
INFORMATION REQUESTED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
American Physician Partners, Inc. (the "Company") hereby incorporates
by reference the following documents filed with the Securities and Exchange
Commission (the "Commission"):
a) The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 filed pursuant
to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"), which contains audited financial statements
for the Company's latest fiscal year;
b) The Company's Annual Report on Form 10-K/A for the
fiscal year ended December 31, 1998 filed May 12,
1999;
c) The Company's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1999;
d) The Company's Quarterly Report on Form 10-Q/A for
the fiscal quarter ended March 31, 1999 filed May
28, 1999;
e) The description of the Company's Common Stock
contained in the Company's Registration Statement
on Form 8-A filed with the Commission on November
3, 1997, pursuant to Section 12 of the Exchange
Act, together with an Amendment filed thereto on
November 3, 1997, in which there is described the
terms, rights and provisions applicable to the
Company's outstanding common stock; and
f) All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all
securities offered hereunder have been sold or
that deregisters all securities then remaining
unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the
date such documents are filed. Any statement
contained in a document incorporated or deemed to
be incorporated by reference herein shall be
deemed to be modified or superseded for purposes
of this Registration Statement to the extent that
a statement contained herein or in any other
subsequently filed document which also is or is
deemed to be incorporated by reference in this
Registration Statement modifies or supersedes such
statement.
<PAGE> 3
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
Company can indemnify its directors and officers against liabilities they may
incur in such capacities, including under the Securities Act of 1933. The
Company's amended and restated bylaws, as amended provide that the Company will
indemnify its directors and officers to the fullest extent permitted by law and
require the Company to advance litigation expenses upon receipt by the Company
of an undertaking by the director or officer to repay such advances if it is
ultimately determined that the director or officer is not entitled to
indemnification. The amended and restated bylaws, as amended further provide
that the rights conferred under such bylaws do not exclude any other right such
persons may have or acquire under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
The Company's restated certificate of incorporation, as amended
provides that, pursuant to Delaware law, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty of care to the
Company and its stockholders. This provision in the restated certificate of
incorporation, as amended does not eliminate the duty of care, and in
appropriate circumstances equitable remedies under Delaware law. In addition,
each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Company or its stockholders, for acts or
omissions not in good faith or involving intentional misconduct or knowing
violations of law, for actions leading to improper personal benefit to the
director, and for payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Delaware law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
The Company has entered into agreements to indemnify its directors
and certain of its officers in addition to the indemnification provided for in
the restated certificate of incorporation, as amended and amended and restated
bylaws, as amended. These agreements, among other things, indemnify the
Company's directors and certain of its officers for certain expenses (including
attorneys' fees), judgments, fines and settlement amounts incurred by such
person in any action or proceeding, including any action by or in the right of
the Company, on account of services as a director or officer of the Company, or
as a director or officer of any other company or enterprise to which the person
provides services at the request of the Company. The Company intends to
maintain insurance against liabilities incurred by its officers and directors
in defense of actions to which they are made parties by reason of their
positions as officers and directors.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 is permitted for directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable. For this undertaking with respect to indemnification,
see Item 9 herein.
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<PAGE> 4
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit No. Description of Exhibits
4.1 - Amendment to Restated Certificate of Incorporation of the
Company, filed as Exhibit 3.3 to Form 10-Q and incorporated
by reference herein.
4.2 - Restated By-laws of the Company, as amended, filed as
Exhibit 3.2 to Form S-1 (333-30205) and incorporated by
reference herein.
4.3 Amendment No. 2 to Restated By-laws of the Company, filed
as Exhibit 3.4 to Form 10-Q and incorporated by
reference herein.
4.4 - Specimen Stock Certificate for the Common Stock of the
Company filed as Exhibit 4.1 to Form S-1 (333-30205) and
incorporated by reference herein.
4.5 - American Physician Partners, Inc. 1996 Stock Option Plan,
filed as Exhibit 4.4 to Form S-4 (333-31611) and
incorporated by reference herein.
4.6 - Amendment No. 1 to American Physician Partners, Inc. 1996
Stock Option Plan, filed as Exhibit 10.48 to Form 10-Q and
incorporated by reference herein.
4.7* - Form of Notice of Grant and Option Agreement.
5.1* - Opinion of Haynes and Boone, LLP with respect to validity
of the issuance of the securities.
23.1* - Consent of Arthur Andersen, LLP, independent auditors.
23.2* - Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
24.1* - Power of attorney of the directors of the Company (included
on the signature page of the Registration Statement).
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* Filed herewith
ITEM 9. UNDERTAKINGS
a. 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
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<PAGE> 5
aggregate, represent a fundamental change
in the information set forth in the
Registration Statement; and
(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 (a)(1)(ii) will not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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; and
(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.
b. The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Securities Exchange Act of 1934) 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.
c. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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 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 whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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<PAGE> 6
SIGNATURES AND POWER OF ATTORNEY
THE COMPANY:
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Dallas, State of Texas, on the 10th day of September,
1999.
AMERICAN PHYSICIAN PARTNERS, INC.
By: /s/ MARK L. WAGAR
-------------------------------
Name: Mark L. Wagar
Title: Chairman, President and Chief
Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Mark L. Wagar and Paul M. Jolas, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign, execute and file with the Securities and Exchange
Commission and any state securities regulatory board or commission any
documents relating to the proposed issuance and registration of the securities
offered pursuant to this Registration Statement on Form S-8 under the
Securities Act of 1933, including any amendment or amendments relating thereto
(and any additional Registration Statement related hereto permitted by Rule
462(b) promulgated under the Securities Act of 1933, including any amendment or
amendments relating thereto), with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority,
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 in order to effectuate the same
as fully to all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their or his substitute or substitutes, may
lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on the 10th day of September, 1999.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C>
/s/ MARK L. WAGAR
- ----------------------------- Chairman, President, Chief Executive Officer
Mark L. Wagar and Director
/s/ SAMI S. ABBASI
- ----------------------------- Chief Financial Officer (Principal Financial
Sami S. Abbasi Officer), Senior Vice President
/s/ DAVID W. YOUNG
- ----------------------------- Controller (Principal Accounting Officer)
David W. Young
</TABLE>
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<PAGE> 7
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ JOHN W. COLLOTON
- ----------------------------- Director
John W. Colloton
/s/ JOHN PAPPAJOHN
- ----------------------------- Director
John Pappajohn
/s/ DERACE L. SCHAFFER, M.D.
- ----------------------------- Director
Derace L. Schaffer, M.D.
/s/ LESS T. CHAFEN, M.D.
- ----------------------------- Director
Less T. Chafen, M.D.
/s/ MICHAEL L. SHERMAN, M.D.
- ----------------------------- Director
Michael L. Sherman, M.D.
</TABLE>
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<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibits
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<S> <C>
4.1 - Amendment to Restated Certificate of Incorporation of the
Company, filed as Exhibit 3.3 to Form 10-Q and incorporated
by reference herein.
4.2 - Restated By-laws of the Company, as amended, filed as
Exhibit 3.2 to Form S-1 (333-30205) and incorporated by
reference herein.
4.3 Amendment No. 2 to Restated By-laws of the Company, filed
as Exhibit 3.4 to Form 10-Q and incorporated by
reference herein.
4.4 - Specimen Stock Certificate for the Common Stock of the
Company filed as Exhibit 4.1 to Form S-1 (333-30205) and
incorporated by reference herein.
4.5 - American Physician Partners, Inc. 1996 Stock Option Plan,
filed as Exhibit 4.4 to Form S-4 (333-31611) and
incorporated by reference herein.
4.6 - Amendment No. 1 to American Physician Partners, Inc. 1996
Stock Option Plan, filed as Exhibit 10.48 to Form 10-Q and
incorporated by reference herein.
4.7* - Form of Notice of Grant and Option Agreement.
5.1* - Opinion of Haynes and Boone, LLP with respect to validity
of the issuance of the securities.
23.1* - Consent of Arthur Anderson, LLP, independent auditors.
23.2* - Consent of Haynes and Boone, LLP (included in Exhibit 5.1).
24.1* - Power of attorney of the directors of the Company (included
on the signature page of the Registration Statement).
</TABLE>
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* Filed herewith
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<PAGE> 1
Exhibit 4.7
AMERICAN PHYSICIAN PARTNERS, INC.
NOTICE OF GRANT OF STOCK OPTION
Notice is hereby given of the following stock option grant
(the "Option") to purchase shares of the Common Stock of American Physician
Partners, Inc. (the "Corporation"):
Optionee:
Grant Date:
Vesting Commencement Date:
Exercise Price:
Number of Option Shares:
Expiration Date:
Type of Option: ___ Incentive Stock Option
___ Non-Statutory Stock Option
Exercise Schedule: The Option shall become exercisable for the
Option Shares in a series of sixty (60) successive equal
monthly installments upon Optionee's completion of each month
of Service over the sixty (60)-month period measured from the
Vesting Commencement Date. In no event shall the Option become
exercisable for any additional Option Shares after Optionee's
cessation of Service.
Optionee understands and agrees that the Option is granted
subject to and in accordance with the express terms and conditions of the
American Physician Partners, Inc. 1996 Stock Option Plan (the "Plan"). Optionee
further agrees to be bound by the terms and conditions of the Plan and the terms
and conditions of the Option as set forth in the Stock Option Agreement attached
hereto as Exhibit A. Optionee acknowledges receipt of the official prospectus
for the Plan attached hereto as Exhibit B. A copy of the actual plan document is
available upon request from the Corporation.
No Employment or Service Contract. Nothing in this Notice or
in the attached Stock Option Agreement or in the Plan shall confer upon Optionee
any right to continue in the Service of the Corporation for any period of
specific duration or interfere with or otherwise restrict in any way the rights
of the Corporation or Optionee, which rights are hereby expressly reserved by
each, to terminate Optionee's Service at any time for any reason whatsoever,
with or without cause.
<PAGE> 2
Definitions. All capitalized terms in this Notice of Grant of
Stock Option shall have the meanings assigned to them in the attached Stock
Option Agreement.
DATED:
----------------------------------
AMERICAN PHYSICIAN PARTNERS, INC.
By:
-------------------------
Title:
-------------------------
-------------------------
OPTIONEE
Address:
-------------------------
-------------------------
2
<PAGE> 3
EXHIBIT A
STOCK OPTION AGREEMENT
3
<PAGE> 4
AMERICAN PHYSICIAN PARTNERS, INC.
STOCK OPTION AGREEMENT
RECITALS
A. The Board has adopted the Plan for the purpose of attracting
and retaining the services of selected Employees (including officers and
directors), non-employee members of the Board and consultants and other
independent contractors who provide valuable services to the Corporation or any
Parent or Subsidiary.
B. Optionee is an individual who is to render valuable services
to the Corporation or any Parent or Subsidiary, and this Agreement is executed
pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the Corporation's grant of a stock option to Optionee.
C. All capitalized terms in this Agreement shall have the meaning
assigned to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. GRANT OF OPTION. Subject to and upon the terms and conditions
set forth in this Agreement, the Corporation hereby grants to Optionee, as of
the Grant Date, a stock option to purchase up to the number of Option Shares
specified in the Grant Notice. The Option Shares shall be purchasable from time
to time during the option term at the Exercise Price.
2. OPTION TERM. This option shall have a maximum term of ten (10)
years measured from the Grant Date and shall accordingly expire at the close of
business on the Expiration Date, unless sooner terminated in accordance with
Paragraph 5 or 6.
3. LIMITED TRANSFERABILITY. This option shall be neither
transferable nor assignable by Optionee other than by will or by the laws of
descent and distribution following Optionee's death and may be exercised, during
Optionee's lifetime, only by Optionee. However, if this option is designated a
Non-Statutory Option in the Grant Notice, then this option may, in connection
with Optionee's estate plan, be assigned in whole or in part during Optionee's
lifetime to one or more members of Optionee's immediate family or to a trust
established for the exclusive benefit of one or more such family members. The
assigned portion shall be exercisable only by the person or persons who acquire
a proprietary interest in the option pursuant to such assignment. The terms
applicable to the assigned portion shall be the same as those in effect for this
option immediately prior to such assignment and shall be set forth in such
documents issued to the assignee as the Plan Administrator may deem appropriate.
4. DATES OF EXERCISE. This option shall become exercisable for
the Option Shares in one or more installments as specified in the Grant Notice.
As the option becomes exercisable for such installments, those installments
shall accumulate and the option shall remain
<PAGE> 5
exercisable for the accumulated installments until the Expiration Date or sooner
termination of the option term under Paragraph 5 or 6.
5. CESSATION OF SERVICE. The option term specified in Paragraph 2
shall terminate (and this option shall cease to be outstanding) prior to the
Expiration Date should any of the following provisions become applicable:
(a) Should Optionee cease to remain in Service for any reason
(other than death, Permanent Disability or termination for Misconduct or breach
of any non-compete covenant or agreement) while this option is outstanding, then
the period for exercising this option shall be reduced to a three (3)-month
period commencing with the date of such cessation of Service, but in no event
shall this option be exercisable at any time after the Expiration Date. Upon the
expiration of such three (3)-month period or (if earlier) upon the Expiration
Date, this option shall terminate and cease to be outstanding.
(b) Should Optionee die while holding this option, then the
personal representative of Optionee's estate or the person or persons to whom
the option is transferred pursuant to Optionee's will or in accordance with the
laws of descent and distribution shall have the right to exercise this option.
Such right shall lapse, and this option shall cease to be outstanding, upon the
earlier of (i) the expiration of the twelve (12)- month period measured from the
date of Optionee's death or (ii) the Expiration Date. Upon the expiration of
such twelve (12)-month period or (if earlier) upon the Expiration Date, this
option shall terminate and cease to be outstanding.
(c) Should Optionee cease Service by reason of Permanent
Disability while this option is outstanding, then the period for exercising this
option shall be reduced to a twelve (12)-month period commencing with the date
of such cessation of Service, but in no event shall this option be exercisable
at any time after the Expiration Date. Upon the expiration of such twelve
(12)-month period or (if earlier) upon the Expiration Date, this option shall
terminate and cease to be outstanding.
(d) During the limited period of post-Service exercisability
applicable under subparagraph (a), (b) or (c) above, this option may not be
exercised in the aggregate for more than the number of Option Shares for which
the option is, at the time of Optionee's cessation of Service, exercisable in
accordance with the Exercise Schedule specified in the Grant Notice. To the
extent this option is not exercisable for one or more Option Shares at the time
of Optionee's cessation of Service, this option shall immediately terminate and
cease to be outstanding with respect to those shares.
(e) Should Optionee's Service be terminated within eighteen
(18) months following a Corporate Transaction in which this option is assumed or
replaced, then the provisions of Paragraph 6(d) shall govern the exercisability
of this option following such Involuntary Termination.
<PAGE> 6
(f) Should (i) Optionee's Service be terminated for Misconduct
or (ii) Optionee violate any covenant or agreement not to compete with the
Corporation, any Parent or Subsidiary, or any professional medical entity
affiliated with the Corporation or any Parent or Subsidiary, then in any such
event this option shall terminate immediately and cease to remain outstanding.
6. SPECIAL TERMINATION.
(a) In the event of a Corporate Transaction, this option, to
the extent outstanding at such time but not otherwise fully exercisable, shall
automatically accelerate so that this option shall, immediately prior to the
effective date of the Corporate Transaction, become exercisable for all of the
Option Shares at the time subject to this option and may be exercised for any or
all of those Option Shares as fully-vested shares of Common Stock. However, this
option shall not become exercisable on such an accelerated basis if and to the
extent: (i) this option is, in connection with the Corporate Transaction, either
to be assumed by the successor corporation (or parent thereof) or to be replaced
with a comparable option to purchase shares of the capital stock of the
successor corporation (or parent thereof) or (ii) this option is to be replaced
with a cash incentive program of the successor corporation which preserves the
spread existing at the time of the Corporate Transaction on any Option Shares
for which this option is not otherwise at that time exercisable (the excess of
the Fair Market Value of those Option Shares over the Exercise Price payable for
such shares) and provides for subsequent payout in accordance with the Exercise
Schedule applicable to those Option Shares. The determination of option
comparability under clause (i) shall be made by the Plan Administrator, and its
determination shall be final, binding and conclusive.
(b) Immediately following the Corporate Transaction, this
option shall terminate and cease to be outstanding, except to the extent assumed
by the successor corporation (or parent thereof) in connection with the
Corporate Transaction.
(c) If this option is assumed in connection with a Corporate
Transaction, then this option shall be appropriately adjusted, immediately after
such Corporate Transaction, to apply to the number and class of securities which
would have been issuable to Optionee in consummation of such Corporate
Transaction had the option been exercised immediately prior to such Corporate
Transaction, and appropriate adjustments shall also be made to the Exercise
Price, provided the aggregate Exercise Price shall remain the same.
<PAGE> 7
(d) Should there occur an Involuntary Termination of
Optionee's Service within eighteen (18) months following a Corporate Transaction
in which this option is assumed or replaced, then this option (or any
replacement grant), to the extent outstanding at that time but not otherwise
fully exercisable, shall automatically accelerate so that this option shall
immediately become exercisable for all the Option Shares at the time subject to
this option and may be exercised for any or all of those Option Shares as
fully-vested shares of Common Stock. This option shall remain so exercisable
until the earlier of (i) the Expiration Date or (ii) the expiration of the one
(l)-year period measured from the date of such Involuntary Termination.
(e) This Agreement shall not in any way affect the right of
the Corporation to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
7. ADJUSTMENT IN OPTION SHARES. In the event any change is made
to the outstanding Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares or other change
affecting the outstanding Common Stock as a class without the Corporation's
receipt of consideration, appropriate adjustments shall be made to (i) the total
number and/or class of securities subject to this option and (ii) the Exercise
Price in order to reflect such change and thereby preclude a dilution or
enlargement of benefits hereunder.
8. PRIVILEGE OF STOCK OWNERSHIP. The holder of this option shall
not have any stockholder rights with respect to the Option Shares until such
individual shall have exercised the option and paid the Exercise Price.
9. MANNER OF EXERCISING OPTION.
(a) In order to exercise this option with respect to all or
any part of the Option Shares for which this option is at the time exercisable,
Optionee (or any other person or persons exercising the option) must take the
following actions:
(i) Execute and deliver to the Corporation a Notice of
Exercise for the Option Shares for which the option is exercised.
(ii) Pay the aggregate Exercise Price for the purchased
shares in one or more of the following forms:
(A) cash or check or wire transfer made payable to
the Corporation;
(B) a promissory note payable to the Corporation,
but only to the extent authorized by the Plan Administrator in
accordance with Paragraph 14;
<PAGE> 8
(C) shares of Common Stock held by Optionee (or
any other person or persons exercising the option) for the requisite
period necessary to avoid a charge to the Corporation's earnings for
financial reporting purposes and valued at Fair Market Value on the
Exercise Date; or
(D) to the extent the option is exercised for
vested Option Shares, through a special sale and remittance procedure
pursuant to which Optionee (or any other person or persons exercising
the option) shall concurrently provide irrevocable written
instructions (I) to a Corporation-designated brokerage firm to effect
the immediate sale of the purchased shares and remit to the
Corporation, out of the sale proceeds available on the settlement
date, sufficient funds to cover the aggregate Exercise Price payable
for the purchased shares plus all applicable Federal, state and local
income and employment taxes required to be withheld by the Corporation
by reason of such exercise and (II) to the Corporation to deliver the
certificates for the purchased shares directly to such brokerage firm
in order to complete the sale.
(iii) Furnish to the Corporation appropriate
documentation that the person or persons exercising the option (if other
than Optionee) have the right to exercise this option.
Except to the extent the sale and remittance procedure is
utilized in connection with the exercise of the option for Option Shares,
payment of the Exercise Price must accompany the Purchase Agreement delivered to
the Corporation.
(b) As soon after the Exercise Date as practical, the
Corporation shall mail or deliver to or on behalf of Optionee (or the other
person or persons exercising this option) a certificate or certificates
representing the shares purchased under this Agreement, with the appropriate
legends affixed thereto.
(c) In no event may this option be exercised for any
fractional shares.
<PAGE> 9
10. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) The exercise of this option and the issuance of the Option
Shares upon such exercise shall be subject to compliance by the Corporation and
Optionee with all applicable requirements of law relating thereto and with all
applicable regulations of any stock exchange (or the Nasdaq National Market, if
applicable) on which the Common Stock may be listed at the time of such exercise
and issuance.
(b) In connection with the exercise of this option, Optionee
shall execute and deliver to the Corporation such representations in writing as
may be requested by the Corporation in order for it to comply with the
applicable requirements of Federal and state securities laws.
11. SUCCESSORS AND ASSIGNS. Except to the extent otherwise
provided in Paragraph 3 or 6, the provisions of this Agreement shall inure to
the benefit of, and be binding upon, the successors, administrators, heirs,
legal representatives and assigns of Optionee and the successors and assigns of
the Corporation.
12. LIABILITY OF CORPORATION. The inability of the Corporation to
obtain approval from any regulatory body having authority deemed by the
Corporation to be necessary to the lawful issuance and sale of any Common Stock
pursuant to this option shall relieve the Corporation of any liability with
respect to the non-issuance or sale of the Common Stock as to which such
approval shall not have been obtained. The Corporation, however, shall use its
best efforts to obtain all such approvals.
13. NOTICES. Any notice required to be given or delivered to the
Corporation under the terms of this Agreement shall be in writing and addressed
to the Corporation in care of the Corporate Secretary at its principal corporate
offices. Any notice required to be given or delivered to Optionee shall be in
writing and addressed to Optionee at the address indicated below Optionee's
signature line on the Grant Notice. All notices shall be deemed to have been
given or delivered upon personal delivery or upon deposit in the U.S. mail,
postage prepaid and properly addressed to the party to be notified.
14. LOANS. The Plan Administrator may, in its absolute discretion
and without any obligation to do so, assist Optionee in the exercise of this
option by (i) authorizing the extension of a loan to Optionee from the
Corporation or (ii) permitting Optionee to pay the Exercise Price for the
purchased Option Shares in installments over a period of years. The terms of any
such loan or installment method of payment (including the interest rate, the
requirements for collateral and the terms of repayment) shall be established by
the Plan Administrator in its sole discretion.
<PAGE> 10
15. CONSTRUCTION. This Agreement and the option evidenced hereby
are made and granted pursuant to the Plan and are in all respects limited by and
subject to the express terms and provisions of the Plan. All decisions of the
Plan Administrator with respect to any question or issue arising under the Plan
or this Agreement shall be conclusive and binding on all persons having an
interest in this option.
16. GOVERNING LAW. The interpretation, performance and
enforcement of this Agreement shall be governed by the laws of the State of
Texas without resort to that State's conflict-of-laws rules.
17. STOCKHOLDER APPROVAL. If the Option Shares covered by this
Agreement exceed, as of the Grant Date, the number of shares of Common Stock
which may without stockholder approval be issued under the Plan, then this
option shall be void with respect to such excess shares, unless stockholder
approval of an amendment sufficiently increasing the number of shares of Common
Stock issuable under the Plan is obtained in accordance with the provisions of
Section III of Article Four of the Plan.
18. ADDITIONAL TERMS APPLICABLE TO AN INCENTIVE OPTION. In the
event this option is designated an Incentive Option in the Grant Notice, the
following terms and conditions shall also apply to the grant:
(a) This option shall cease to qualify for favorable tax
treatment as an Incentive Option if (and to the extent) this option is exercised
for one or more Option Shares: (i) more than three (3) months after the date
Optionee ceases to be an Employee for any reason other than death or Permanent
Disability or (ii) more than twelve (12) months after the date Optionee ceases
to be an Employee by reason of Permanent Disability.
(b) No installment under this option shall qualify for
favorable tax treatment as an Incentive Option if (and to the extent) the
aggregate Fair Market Value (determined at the Grant Date) of the Common Stock
for which such installment first becomes exercisable hereunder would, when added
to the aggregate value (determined as of the respective date or dates of grant)
of any earlier installments of the Common Stock and any other securities for
which this option or any other Incentive Options granted to Optionee prior to
the Grant Date (whether under the Plan or any other option plan of the
Corporation or any Parent or Subsidiary) first become exercisable during the
same calendar year, exceed One Hundred Thousand Dollars ($100,000) in the
aggregate. Should such One Hundred Thousand Dollar ($100,000) limitation be
exceeded in any calendar year, this option shall nevertheless become exercisable
for the excess shares in such calendar year as a Non-Statutory Option.
(c) Should Optionee hold, in addition to this option, one or
more other options to purchase Common Stock which become exercisable for the
first time in the same calendar year as this option, then the foregoing
limitations on the exercisability of such options as Incentive Options shall be
applied on the basis of the order in which such options are granted.
19. WITHHOLDING TAXES. Optionee hereby agrees to make appropriate
arrangements with the Corporation or Parent or Subsidiary employing Optionee for
the satisfaction of all Federal, state and local income and employment tax
withholding requirements applicable to the exercise of this option.
<PAGE> 11
EXHIBIT I
NOTICE OF EXERCISE
I hereby notify American Physician Partners, Inc. (the
"Corporation") that I elect to purchase _______ shares of the Corporation's
Common Stock (the "Purchased Shares") at the option exercise price of
$__________ per share (the "Exercise Price") pursuant to that certain option
(the "Option") granted to me under the Corporation's 1996 Stock Option Plan on
____________, 199_.
Concurrently with the delivery of this Exercise Notice to the
Corporation, I shall hereby pay to the Corporation the Exercise Price for the
Purchased Shares in accordance with the provisions of my agreement with the
Corporation (or other documents) evidencing the Option and shall deliver
whatever additional documents may be required by such agreement as a condition
for exercise. Alternatively, I may utilize the special broker-dealer sale and
remittance procedure specified in my agreement to effect payment of the Exercise
Price.
______________________, 199
Date
Optionee:
-----------------------------------------------------------------------
Address:
------------------------------------------------------------------------
------------------------------------------------------------------------
Print name in exact manner
it is to appear on the
stock certificate:
--------------------------------------------------------------
Address to which certificate
is to be sent, if different
from address above:
-------------------------------------------------------------
- --------------------------------------------------------------------------------
Social Security Number:
---------------------------------------------------------
Employee Number:
----------------------------------------------------------------
<PAGE> 12
APPENDIX
DEFINITIONS
A. BOARD shall mean the Corporation's Board of Directors.
B. CODE shall mean the Internal Revenue Code of 1986, as amended.
C. COMMON STOCK shall mean the Corporation's common stock, $.0001
par value per share.
D. COMMON STOCK REGISTRATION DATE shall mean the date on which
the Common Stock is first registered under Section 12(g) of the Securities
Exchange Act of 1934.
E. CORPORATE TRANSACTION shall mean any of the following
stockholder-approved transactions to which the Corporation is a party, whether
occurring before or after the Common Stock Registration Date: Auto paragraph
numbering begins again after "B.".
(i) a merger or consolidation in which the Corporation is not
the surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Corporation is incorporated,
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Corporation in complete
liquidation or dissolution of the Corporation, or
(iii) any reverse merger in which the Corporation is the
surviving entity but in which securities possessing more than fifty
percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
merger.
F. CORPORATION shall mean American Physician Partners, Inc., a
Delaware corporation.
G. EMPLOYEE shall mean an individual who performs services while
in the employ of the Corporation or any Parent or Subsidiary, subject to the
control and direction of the employer entity as to both the work to be performed
and the manner and method of performance.
<PAGE> 13
H. EXERCISE DATE shall mean the date on which the option shall
have been exercised in accordance with Paragraph 9 of this Stock Option
Agreement.
I. EXERCISE PRICE shall mean the exercise price per share as
specified in the Grant Notice.
J. EXERCISE SCHEDULE shall mean the schedule set forth in the
Grant Notice, pursuant to which the option is to become exercisable for the
Option Shares in a series of installments over Optionee's period of Service.
K. EXPIRATION DATE shall mean the date on which the option
expires as set forth in the Grant Notice.
L. FAIR MARKET VALUE per share of Common Stock on any relevant
date under the Plan shall be the value determined in accordance with the
following provisions:
(i) If the Common Stock is not at the time listed or admitted
to trading on any Stock Exchange but is traded on the Nasdaq National
Market, the Fair Market Value shall be the closing selling price per
share of Common Stock on the date in question, as the price is reported
by the National Association of Securities Dealers on the Nasdaq
National Market. If there is no reported closing selling price for the
Common Stock on the date in question, then the Fair Market Value shall
be the closing selling price on the last preceding date for which such
quotation exists.
(ii) If the Common Stock is at the time listed or admitted to
trading on any Stock Exchange, then the Fair Market Value shall be the
closing selling price per share of Common Stock on the date in question
on the Stock Exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such price is officially quoted
in the composite tape of transactions on such exchange. If there is no
reported closing selling price on such exchange for the Common Stock on
the date in question, then the Fair Market Value shall be the closing
selling price on such exchange on the last preceding date for which
such quotation exists.
(iii) If the Common Stock is on the date in question neither
listed nor admitted to trading on any Stock Exchange nor traded on the
Nasdaq National Market, then such Fair Market Value of Common Stock on
the date in question shall be determined by the Plan Administrator
after taking into account such factors as the Plan Administrator shall
deem appropriate.
M. GRANT DATE shall mean the date of grant of the stock option as
set forth in the Grant Notice.
N. GRANT NOTICE shall mean the notice of grant of stock option
pursuant to which Optionee has been informed of the basic terms of the option.
<PAGE> 14
O. INCENTIVE OPTION shall mean a stock option which satisfies the
requirements of Code Section 422.
P. INVOLUNTARY TERMINATION shall mean the termination of
Optionee's Service which occurs by reason of:
(i) Optionee's involuntary dismissal or discharge by the
Corporation for reasons other than Misconduct, or
(ii) Optionee's voluntary resignation following
(A) a change in Optionee's position with the Corporation (or Parent or
Subsidiary employing Optionee) which materially reduces Optionee's
duties and responsibilities or the level of management to which he or
she reports, (B) a reduction in Optionee's level of compensation
(including base salary, fringe benefits and target bonus under any
performance-based bonus or incentive programs) by more than fifteen
percent (15%) or (C) a relocation of Optionee's place of employment by
more than fifty (50) miles, provided and only if such change, reduction
or relocation is effected by the Corporation without Optionee's
consent.
Q. MISCONDUCT shall mean the commission of any act of fraud,
embezzlement or dishonesty by Optionee, any unauthorized use or disclosure by
Optionee of confidential information or trade secrets of the Corporation (or any
Parent or Subsidiary), a breach of the Confidentiality, Proprietary Information
and Inventions Agreement executed by and between the Corporation and Optionee or
any other intentional misconduct by Optionee adversely affecting the business or
affairs of the Corporation (or any Parent or Subsidiary) in a material manner.
The foregoing definition shall not be deemed to be inclusive of all the acts or
omissions which the Corporation (or any Parent or Subsidiary) may consider as
grounds for the dismissal or discharge of Optionee or any other individual in
the Service of the Corporation (or any Parent or Subsidiary).
R. NON-STATUTORY OPTION shall mean an option not intended to meet
the requirements of Code Section 422.
S. NOTICE OF EXERCISE shall mean the notice of exercise in the
form attached hereto as Exhibit I.
T. OPTION SHARES shall mean the number of shares of Common Stock
subject to the option.
<PAGE> 15
U. PARENT shall mean any corporation (other than the Corporation)
in an unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
V. PERMANENT DISABILITY OR PERMANENTLY DISABLED shall mean the
inability of the Optionee to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve (12) months.
W. PLAN shall mean the Corporation's 1996 Stock Option Plan.
X. PLAN ADMINISTRATOR shall mean either the Board or a committee
of Board members, to the extent the committee is at the time responsible for the
administration of the Plan in accordance with Article IV of the Plan.
Y. SERVICE shall mean the performance of services on a periodic
basis to the Corporation (or any Parent or Subsidiary) in the capacity of an
Employee, a non-employee member of the board of directors or an independent
consultant or advisor.
Z. STOCK EXCHANGE shall mean the American Stock Exchange or the
New York Stock Exchange.
AA. SUBSIDIARY shall mean each corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the
Corporation, provided each such corporation (other than the last corporation) in
the unbroken chain owns, at the time of the determination, stock possessing
fifty percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
<PAGE> 16
EXHIBIT B
PLAN PROSPECTUS
<PAGE> 1
EXHIBIT 5.1
September 10, 1999
American Physician Partners, Inc.
3600 Chase Tower
2200 Ross Avenue
Dallas, Texas 75201
Gentlemen:
We have acted as special counsel to American Physician Partners, Inc., a
Delaware corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to the registration of 3,736,957 shares of Common Stock, par value
$0.0001 per share (the "Common Stock"), of the Company that may be issued
pursuant to the American Physician Partners, Inc. 1996 Stock Option Plan (the
"Plan") and may be issued upon the exercise of currently outstanding options
granted to various employees under the Plan. The law covered by the opinions
expressed herein is limited to the Federal law of the United States and the
General Corporation Law of the State of Delaware.
In connection therewith, we have examined (i) the Restated Certificate of
Incorporation, as amended and the Restated Bylaws, as amended of the Company;
(ii) minutes and records of the corporate proceedings of the Company with
respect to the adoption of the Plan and the granting of awards thereunder; and
(iii) such other documents as we have deemed necessary for the expression of the
opinion contained herein.
In making the foregoing examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals,
and the conformity to original documents of all documents submitted to us as
certified or photostatic copies. Furthermore, we have assumed that the exercise
prices of all stock options that may be granted under the Plan will equal or
exceed the par value per share of the Common Stock. As to questions of fact
material to this opinion, where such facts have not been independently
established, and as to the content and form of the amended Certificate of
Incorporation, amended Bylaws, minutes, records, resolutions and other documents
or writings of the Company, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or directors of
the Company and upon
<PAGE> 2
American Physician Partners, Inc.
September 10, 1999
Page 2
documents, records and instruments furnished to us by the Company, without
independent check or verification of their accuracy.
Based upon the foregoing, and having due regard for such legal considerations as
we deem relevant, we are of the opinion that the 3,736,957 shares of Common
Stock covered by the Registration Statement which may be issued from time to
time in accordance with the terms of the Plan have been duly authorized for
issuance by the Company, and, when so issued in accordance with the terms and
conditions of the Plan and any related option or other applicable agreements,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement and to the reference to
our firm under the caption, "Item 5. Interests of Named Experts and Counsel" in
the Registration Statement.
Very truly yours,
/s/ HAYNES AND BOONE, LLP
Haynes and Boone, LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated January 27, 1999 on the consolidated financial statements of American
Physician Partners, Inc., (and to all references to our Firm), incorporated by
reference into this Registration Statement on Form S-8 of American Physician
Partners, Inc.
/s/ Arthur Andersen, LLP
Dallas, Texas
September 9, 1999
