As filed with the Securities and Exchange Commission on January 24, 1996
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1993
__________
ORNDA HEALTHCORP
(Exact name of registrant as specified in its charter)
Delaware 75-1776092
(State or otherjurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
3401 West End Avenue Suite 700
Nashville, Tennessee 37203
(Address, including zip code and telephone number, including area code,
of registrant's principal executive offices)
__________
OrNda HealthCorp 1994 Management Equity Plan
(Full title of the Plan)
__________
Ronald P. Soltman, Esq.
Senior Vice President, Secretary and General Counsel
OrNda HealthCorp
3401 West End Avenue, Suite 700
Nashville, TN 37203
(615) 383-8599
(Name and address and telephone number, including area code,
of agent for service)
__________
(Note: Facing page information is continued on page ii)<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
=================================================================================================================================
<S> <C> <C> <C>
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Registered Price Per Share(2) Offering Price (2) Registration Fee
_________________________________________________________________________________________________________________________________
Common Stock 3,000,000 $24.82 $74,460,000 $25,675.87
($.01 par value
=================================================================================================================================
</TABLE>
(1) The registration statement also includes an indeterminable number of
additional shares pursuant to the stock split and other similar adjustment
provisions of the Plan.
(2) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended (the "Securities Act") on the basis of the average of
the $25.125 high and $24.50 low sale prices for a share of Common Stock
on the New York Stock Exchange on Friday, January 19, 1996.<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1(b). Securities to be Offered.
OrNda HealthCorp (File No. 1-11591), which corporation is herein
referred to as "OrNda" or the "registrant", hereby registers 3,000,000 shares
of the Company's Common Stock, par value $.01 per share (the "Common Stock"),
in connection with an amendment to the OrNda HealthCorp 1994 Management Equity
Plan (the "Plan"). The amendment was approved by OrNda's Board of Directors
on November 29, 1995, and by OrNda's stockholders at OrNda's Annual Meeting
of Stockholders on January 19, 1996. The amendment increased the number of
shares of Common Stock available for grants under the Plan from 3,550,000 to
6,550,000 shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
OrNda previously registered under the Securities Act of 1933,
as amended (the "Securities Act'), an aggregate of 3,550,000 shares of Common
Stock offered pursuant to the Plan pursuant to a registration statement on
Form S-8 (the "Previous Registration Statement") filed with the Commission on
July 20, 1994 (Registration No. 33-81778). The Previous Registration Statement
is hereby incorporated in this registration statement by reference. The
following documents heretofore filed with the Securities and Exchange
Commission (the "Commission") by OrNda are incorporated by reference in this
registration statement:
(a) OrNda's Annual Report on Form 10-K for the year ended
August 31, 1995.
(b) OrNda's Quarterly Report on Form 10-Q for the quarter ended
November 30, 1995.
(c) OrNda's Current Reports on Form 8-K dated September 27, 1995,
October 2, 1995, October 10, 1995, October 30, 1995, October 31,
1995, November 6, 1995, November 24,1995, December 13, 1995 and
January 3, 1996.
(d) The description of the registrant's Common Stock which is
contained in the registrant's Registration Statement on Form
8-A filed with the Commission on December 13, 1995 under
section 12 of the Securities Exchange Act of 1934, including
any amendment or reports filed for the purpose of updating such
description.
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
prior to the filing of a post-effective amendment to the registration statement
which indicates that all of the shares of common stock offered have been sold
or which deregisters all of such shares then remaining unsold, shall be deemed
to be incorporated by reference in the registration statement and to be a part
hereof from the date of filing of such documents. 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 herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
Item 6. Indemnification of Directors and Officers.
The following information updates the information set forth in
"Item 6. Indemnification of Directors and Officers" in the Previous
Registration Statement.
Section 145 of the Delaware General Corporation Law ("Delaware Law")
provides generally and in pertinent part that a Delaware corporation may
indemnify its directors and officers against expenses, judgments, fines, and
settlements actually and reasonably incurred by them in connection with any
civil suit or action, except actions by or in the right of the corporation,
or any administrative or investigative proceeding if, in connection with the
matters in issue, they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the corporation,
and in connection with any criminal suit or proceeding, if in connection with
the matters in issue, they had no reasonable cause to believe their conduct
was unlawful. Section 145 further provides that, in connection with the defense
or settlement of any action by or in the right of the corporation, a Delaware
corporation may indemnify its directors and officers against expenses actually
and reasonably incurred by them if, in connection with the matters in issue,
they acted in good faith, in a manner they reasonably believed to be in, or
not opposed to, the best interest of the corporation, and without negligence
or misconduct in the performance of their duties to the corporation. Section
145 further permits a Delaware corporation to grant its directors and officers
additional rights of indemnification through by-law provisions and otherwise.
Article Seven of the Restated Certificate of Incorporation of the
registrant and Article VI of the ByLaws of the Registrant provide that the
registrant shall indemnify its directors and officers to the fullest extent
permitted by Delaware Law. The Registrant has entered into indemnification
agreements with each of its directors and officers at or above the Vice
President level. Such indemnification agreements are intended to provide a
contractual right to indemnification, to the maximum extent permitted by law,
for expenses (including attorneys' fees) judgments, penalties, fines, and
amounts paid in settlement actually and reasonably incurred by the person to
be indemnified in connection with any proceeding (including, to the extent
permitted by applicable law, any derivative action) to which they are, or are
threatened to be made, a party by reason of their status in such positions.
Such indemnification agreements do not change the basic legal standards for
indemnification set forth under Delaware Law or the Restated Certificate of
Incorporation of the registrant. Such agreements are intended to be in
furtherance, and not in limitation of, the general right to indemnification
provided in the registrant's Restated Certificate of Incorporation.
Section 102(b)(7) of Delaware Law provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation 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 Section 174 of the Delaware Law
(relating to liability for unauthorized acquisitions or redemptions of, or
dividends on, capital stock) or (iv) for any transaction from which the
director derived an improper personal benefit. Article Eight of the
registrant's Restated Certificate of Incorporation contains such a provision.
In addition, the registrant maintains officers' and directors'
liability insurance which insures against liabilities that officers and
directors of the registrant may incur in such capacities.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the registrant pursuant to the foregoing provisions, the registrant
has been informed 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.
Item 8. Exhibits.
The exhibits to this registration statement are listed in the
Exhibit Index found immediately preceding the exhibits which information is
incorporated herein by reference.<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Nashville, State of Tennessee, on the 24th day
of January, 1996.
ORNDA HEALTHCORP
By: /s/ Ronald P. Soltman
Ronald P. Soltman
Senior Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Keith B. Pitts and Ronald P. Soltman, and each
of them, 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 any and all amendments (including post-
effective amendments) to this Registration Statement and to file the same with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on the 24th day of January, 1996
by the following persons in the capacities indicated.<PAGE>
Signature Title
/s/ Charles N. Martin, Jr. Chairman of the Board, President and
Charles N. Martin, Jr. Chief Executive Officer
(Principal Executive Officer)
/s/ Keith B. Pitts Executive Vice President and
Keith B. Pitts Chief Financial Officer
(Principal Financial Officer)
/s/ Phillip W. Roe Vice President-Controller
Phillip W. Roe (Principal Accounting Officer)
/s/ Richard A. Gilleland Director
Richard A. Gilleland
/s/ Leonard Green Director
Leonard Green
/s/ Peter A. Joseph Director
Peter A. Joseph
/s/ Paul S. Levy Director
Paul S. Levy
Angus C. Littlejohn, Jr. Director
/s/ John F. Nickoll Director
John F. Nickoll
/s/ John J. O'Shaughnessy Director
John J. O'Shaughnessy
/s/ M. Lee Pearce, M.D. Director<PAGE>
EXHIBITS
TO
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
____________________
ORNDA HEALTHCORP
____________________
3,000,000 SHARES
OF
COMMON STOCK<PAGE>
EXHIBIT INDEX
Exhibit No. Description of Exhibit
4(a). . . . Restated Certificate of Incorporation of the Registrant as
amended through October 1991. (Incorporated by reference to
exhibits filed with the Registrant's Current Report on Form
8-K dated October 15, 1991.)
4(b). . . . Certificate of Amendment to Registrants' Restated Certificate
of Incorporation. (Incorporated by reference to Exhibit 3 to
the Registrants' Current Report on Form 8-K dated April 19,
1994.)
4(c). . . . Bylaws of the Registrant. (Incorporated by reference to Exhibit
4(c) included in the Company's Registration Statement on Form
S-8 under the Securities Act of 1993, File No. 33-81778.)
4(d). . . . OrNda HealthCorp 1994 Management Equity Plan, as amended on
January 19, 1996.
5 . . . . . Opinion of Ronald P. Soltman, Esq. (including the consent of
such counsel) regarding legality of securities being offered
23(a) . . . Consent of Independent Auditors
23(b) . . . Consent of Ronald P. Soltman, Esq. (included as part of opinion
filed pursuant to Exhibit 5 hereof)
24(a) . . . Power of Attorney (included on signature page of this
registration statement)
24(b) . . . Certified Board resolution relating to Power of Attorney
Exhibit 4(d)
As amended through
January 19, 1996
ORNDA HEALTHCORP
1994 MANAGEMENT EQUITY PLAN
1. Purpose; Types of Awards; Construction.
The purpose of the OrNda HealthCorp 1994 Management Equity Plan (the
"Plan") is to afford an incentive to executive officers, other key employees
and consultants of OrNda HealthCorp (the "Company"), or any subsidiary of the
Company which now exists or hereafter is organized or acquired by the Company,
to acquire a proprietary interest in the Company, to continue as employees or
consultants, to increase their efforts on behalf of the Company and to promote
the success of the Company's business. The provisions of the Plan are intended
to satisfy the requirements of Section 16(b) of the Securities Exchange Act of
1934, and shall be interpreted in a manner consistent with the requirements
thereof, as now or hereafter construed, interpreted and applied by regulations,
rulings and cases.
2. Definitions.
As used in this Plan, the following words and phrases shall have the
meanings indicated:
(a) "Acceleration Date" shall have the meaning set forth in Section 11.
(b) "'Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(d) "Committee" shall mean the Compensation Committee of the Board or such
other committee established by the Board to administer the Plan.
(e) "Common Stock" shall mean shares of common stock, par value $.01 per
share, of the Company.
(f) "Company" shall mean OrNda HealthCorp, a corporation organized under
the laws of the State of Delaware, or any successor corporation.
(g) "Disability" shall mean a Grantee's inability to perform his duties
with the Company or any of its affiliates by reason of any medically
determinable physical or mental impairment, as determined by a physician
selected by the Grantee and acceptable to the Company.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and as now or hereafter construed, interpreted
and applied by regulations, rulings and cases.
(i) "Fair Market Value" per share as of a particular date shall mean
(i) the closing sales price per share of Common Stock on the national
securities exchange on which the Common Stock is principally traded
for the last preceding date on which there was a sale of such Common Stock
on such exchange, or (ii) if the shares of Common Stock are then traded in
an over-the-counter market, the average of the closing bid and asked
prices for the shares of Common Stock in such over-the-counter market for
the last preceding date on which there was a sale of such Common Stock in
such market, or (iii) if the shares of Common Stock are not then listed on
a national securities exchange or traded in an over-the-counter market,
such value as the Committee, in its sole discretion, shall determine.
(j) "Grantee" shall mean a person who receives a grant of Options, Stock
Appreciation Rights or Limited Rights under the Plan.
(k) "Incentive Stock Option" shall mean any option intended to be, and
designated as, an incentive stock option within the meaning of Section
422 of the Code.
(l) "Insider" shall mean a Grantee who is subject to the reporting
requirements of Section 16(a) of the Exchange Act.
(m) "Limited Right" shall mean a limited stock appreciation right granted
pursuant to Section 10 which, in general, may be exercised for cash
following an Acceleration Date.
(n) "Option" or "Options" shall mean a grant to a Grantee of an option or
options to purchase shares of Common Stock. Options granted by the
Committee pursuant to the Plan shall constitute either Incentive Stock
Options or Non-qualified Stock Options.
(o) "Option Agreement" shall mean an agreement entered into between the
Company and a Grantee in connection with a grant under the Plan.
(p) "Option Price" shall mean the exercise price of the shares of Common
Stock covered by an Option.
(q) "Parent" shall mean any company (other than the Company) in an
unbroken chain of companies ending with the Company if, at the time of
granting an Option, each of the companies other than the Company owns
stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other companies in such chain.
(r) "Plan" means this OrNda HealthCorp 1994 Management Equity Plan, as
amended from time to time.
(s) "Rule 16b-3" shall mean Rule 16b-3, as from time to time in effect,
promulgated by the Securities and Exchange Commission under Section 16 of
the Exchange Act, including any successor to such Rule.
(t) "Stock Appreciation Right" shall mean the right, granted to a Grantee
under Section 9, to be paid an amount measured by the appreciation in
the Fair Market Value of Common Stock from the date of grant to the date
of exercise of the right, with payment to be made in cash or Common Stock
as specified in the award or determined by the Committee.
(u) "Subsidiary" shall mean any company (other than the Company) in an
unbroken chain of companies beginning with the Company if, at the time of
granting an Option, each of the companies other than the last company in
the unbroken chain owns stock possessing fifty percent (50%) or more
of the total combined voting power of all classes of stock in one of the
other companies in such chain.
(v) "Ten Percent Stockholder" shall mean a Grantee who, at the time an
Incentive Stock Option is granted, owns stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock
of the Company or any Parent or Subsidiary.
3. Administration.
The Plan shall be administered by the Committee. The Committee shall have
the authority in its discretion, subject to and not inconsistent with the
express provisions of the Plan, to administer the Plan and to exercise all the
powers and authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan, including, without
limitation, the authority to grant Options, Stock Appreciation Rights and
Limited Rights; to determine which Options shall constitute Incentive Stock
Options and which Options shall constitute Nonqualified Stock Options; to
determine which Options (if any) shall be accompanied by Limited Rights; to
determine the purchase price of the shares of Common Stock covered by each
Option; to determine the persons to whom, and the time or times at which
awards shall be granted; to determine the number of shares to be covered by
each award; to interpret the Plan; to prescribe, amend and rescind rules and
regulations relating to the Plan; to determine the terms and provisions of
the Option Agreements (which need not be identical) and to cancel or suspend
awards, as necessary; and to make all other determinations deemed necessary
or advisable for the administration of the Plan.
The Committee may delegate to one or more of its members or to one or
more agents such administrative duties as it may deem advisable, and the
Committee or any person to whom it has delegated duties as aforesaid may
employ one or more persons to render advice with respect to any responsibility
the Committee or such person may have under the Plan. All decisions,
determinations and interpretations of the Committee shall be final and binding
on all Grantees of any awards under this Plan.
The Board shall fill all vacancies, however caused, in the Committee. The
Board may from time to time appoint additional members to the Committee, and
may at any time remove one or more Committee members and substitute others. One
member of the Committee shall be selected by the Board as chairman. The
Committee shall hold its meetings at such times and places as it shall deem
advisable. All determinations of the Committee shall be made by a majority of
its members either present in person or participating by conference telephone
at a meeting or by written consent. The Committee may appoint a secretary and
make such rules and regulations for the conduct of its business as it shall
deem advisable, and shall keep minutes of its meetings.
No member of the Board or Committee shall be liable for any action taken
or determination made in good faith with respect to the Plan or any award
granted hereunder.
4. Eligibility.
Awards may be granted to executive officers and other key employees and
consultants of the Company or its Subsidiaries, including officers and
directors who are employees, except as proscribed by the Exchange Act or the
Code. In determining the persons to whom awards shall be granted and the number
of shares to be covered by each award, the Committee shall take into account
the duties of the respective persons, their present and potential contributions
to the success of the Company and such other factors as the Committee shall
deem relevant in connection with accomplishing the purpose of the Plan.
5. Stock
The maximum number of shares of Common Stock reserved for the grant of
awards under the Plan shall be 6,550,000 subject to adjustment as provided in
Section 11 hereof. Such shares may, in whole or in part, be authorized but
unissued shares or shares that shall have been or may be reacquired by the
Company. The maximum number of shares with respect to which awards may be
granted during any calendar year to any individual shall be 1,500,000.
If any outstanding award under the Plan should, for any reason expire, be
cancelled or be forfeited (other than in connection with the exercise of a
Stock Appreciation Right or Limited Right), without having been exercised in
full, the shares of Common Stock allocable to the unexercised, cancelled or
terminated portion of such award shall (unless the Plan shall have been
terminated) become available for subsequent grants of awards under the Plan.
6. Terms and Conditions of Options.
Each Option granted pursuant to the Plan shall be evidenced by an Option
Agreement, in such form and containing such terms and conditions as the
Committee shall from time to time approve. Each Option shall be subject to the
following terms and conditions, except to the extent otherwise specifically
provided in such Option Agreement:
(a) Number of Shares. Each Option Agreement shall state the number of
shares of Common Stock to which the Option relates.
(b) Type of Option. Each Option Agreement shall specifically state that
the Option constitutes an Incentive Stock Option or a Nonqualified Stock
Option.
(c) Option Price. Each Option Agreement shall state the Option Price,
which, in the case of an Incentive Stock Option, shall not be less than
one hundred percent (100%) of the Fair Market Value of the shares of
Common Stock covered by the Option on the date of grant. The Option Price
shall be subject to adjustment as provided in Section 11 hereof. The date
as of which the Committee adopts a resolution expressly granting an Option
shall be considered the day on which such Option is granted.
(d) Medium and Time of Payment. The Option Price shall be paid in full,
at the time of exercise, in cash or in shares of Common Stock having a
Fair Market Value equal to such Option Price or in a combination of cash
and Common Stock or in such other manner as the Committee shall determine
including a cashless exercise procedure through a broker-dealer.
(e) Term and Exercisability of Options. Each Option Agreement shall
provide the exercise schedule for the Option as determined by the
Committee, provided, that, the Committee shall have the authority to
accelerate the exercisability of any outstanding Option at such time and
under such circumstances as it, in its sole discretion, deems appropriate.
The exercise period will be ten (10) years from the date of the grant of
the Option unless otherwise determined by the Committee; provided,
however, that in the case of an Incentive Stock Option, such exercise
period shall not exceed ten (10) years from the date of grant of such
Option. The exercise period shall be subject to earlier termination as
provided in Sections 6(f) hereof. An Option may be exercised, as to any
or all full shares of Common Stock as to which the Option has become
exercisable, by written notice delivered in person or by mail to the
Secretary of the Company, specifying the number of shares of Common Stock
with respect to which the Option is being exercised.
(f) Termination. Except as provided in this Section 6(f), an Option may
not be exercised unless the Grantee is then in the employ of or
maintaining a consultant relationship with the Company or a Subsidiary
thereof (or a company or a Parent or Subsidiary company of such company
issuing or assuming the Option in a transaction to which Section 424(a)
of the Code applies), and unless the Grantee has remained continuously
so employed or in the consultant relationship since the date of grant of
the Option. In the event that the employment or consultant relationship of
a Grantee shall terminate, all Options of such Grantee that are
exercisable at the time of such termination may, unless earlier terminated
in accordance with their terms, be exercised within thirty (30) days after
the date of such termination (or such longer period as the Committee shall
prescribe) and all Options that are nonexercisable at the time of such
termination shall terminate at such time.
(g) Other Provisions. The Option Agreements evidencing awards under the
Plan shall contain such other terms and conditions not inconsistent with
the Plan as the Committee may determine.
7. Nonqualifed Stock Options.
Options granted pursuant to this Section 7 are intended to constitute
Nonqualified Stock Options and shall be subject only to the general terms and
conditions specified in Section 6 hereof.
8. Incentive Stock Options
Options granted pursuant to this Section 8 are intended to constitute
Incentive Stock Options and shall be subject to the following special terms
and conditions, in addition to the general terms and conditions specified
in Section 6 hereof.
(a) Value of Shares. The aggregate Fair Market Value (determined as of
the date the Incentive Stock Option is granted) of the shares of Common
Stock with respect to which Incentive Stock Options granted under this
Plan and all other option plans of any subsidiary become exercisable for
the first time by any Grantee during any calendar year shall not exceed
$100,000.
(b) Ten Percent Stockholder. In the case of an Incentive Stock Option
granted to a Ten Percent Stockholder, (i) the Option Price shall not be
less than one hundred ten percent (110%) of the Fair Market Value of the
shares of Common Stock on the date of grant of such Incentive Stock
Option, and (ii) the exercise period shall not exceed five (5) years from
the date of grant of such Incentive Stock Option.
9. Stock Appreciation Rights.
The Committee shall have authority to grant a Stock Appreciation Right to
the Grantee of any Option under the Plan with respect to all or some of the
shares of Common Stock covered by such related Option. A Stock Appreciation
Right shall, except as provided in this Section 9, be subject to the same terms
and conditions as the related Option. Each Stock Appreciation Right granted
pursuant to the Plan shall be evidenced by a written Agreement between the
Company and the Grantee in such form as the Committee shall time to time
approve.
(a) Time of Grant. A Stock Appreciation Right may be granted either at
the time of grant, or at any time thereafter during the term of the
Option; provided, however that Stock Appreciation Rights related to
Incentive Stock Options may only be granted at the time of grant of the
related Option.
(b) Payment. A Stock Appreciation Right shall entitle the holder
thereof, upon exercise of the Stock Appreciation Right or any portion
thereof, to receive payment of an amount computed pursuant to Section
9(d).
(c) Exercise. A Stock Appreciation Right shall be exercisable at such
time or times and only to the extent that the related Option is
exercisable, and will not be transferable except to the extent the related
Option may be transferable. A Stock Appreciation Right granted in
connection with an Incentive Stock Option shall be exercisable only if the
Fair Market Value of a share of Common Stock on the date of exercise
exceeds the purchase price specified in the related Incentive Stock
Option.
(d) Amount Payable. Upon the exercise of a Stock Appreciation Right, the
Optionee shall be entitled to receive an amount determined by multiplying
(i) the excess of the Fair Market Value of a share of Common Stock on the
date of exercise of such Stock Appreciation Right over the Option Price
under the related Option, by (ii) the number of shares of Common Stock as
to which such Stock Appreciation Right is being exercised. Notwithstanding
the foregoing, the Committee may limit in any manner the amount payable
with respect to any Stock Appreciation Right by including such a limit at
the time it is granted.
(e) Treatment of Related Options and Stock Appreciation Rights Upon
Exercise. Upon the exercise of a Stock Appreciation Right, the related
Option shall be canceled to the extent of the number of shares of Common
Stock as to which the Stock Appreciation Right is exercised and upon the
exercise of an Option granted in connection with a Stock Appreciation
Right, the Stock Appreciation Right shall be cancelled to the extent of
the number of shares of Common Stock as to which the Option is exercised
or surrendered.
(f) Method of Exercise. Stock Appreciation Rights shall be exercised by
a Grantee only by a written notice delivered in person or by mail to the
Secretary of the Company, specifying the number of shares of Common Stock
with respect to which the Stock Appreciation Right is being exercised.
If requested by the Committee, the Grantee shall deliver the Agreement
evidencing the Stock Appreciation Right being exercised and the Option
Agreement evidencing any related Option to the Secretary of the Company
who shall endorse thereon a notation of such exercise and return such
Agreements to the Grantee.
(g) Form of Payment. Payment of the amount determined under Section
9(d), may be made solely in whole shares of Common Stock in a number
determined based upon their Fair Market Value on the date of exercise of
the Stock Appreciation Right or, alternatively, at the sole discretion of
the Committee, solely in cash, or in a combination of cash and shares of
Common Stock as the Committee deems advisable. If the Committee decides
to make full payment in shares of Common Stock, and the amount payable
results in a fractional share, payment for the fractional share will be
made in cash. Notwithstanding the foregoing, to the extent required by
Rule 16b-3 no payment in the form of cash may be made upon the exercise
of a Stock Appreciation Right pursuant to Section 9(d) to an Insider,
unless the exercise of such Stock Appreciation Right is made during
the period beginning on the third business day and ending on the twelfth
business day following the date of release for publication of the
Company's quarterly or annual statements of earnings.
10. Limited Stock Appreciation Rights.
The Committee shall have authority to grant a Limited Right to the Grantee
of any Option under the Plan with respect to all or some of the shares of
Common Stock covered by such related Option. Each Limited Right granted
pursuant to the Plan shall be evidenced by a written Agreement between the
Company and the Grantee, in such form as the Committee shall from time to time
approve.
(a) Time of Grant. A Limited Right granted in tandem with a Nonqualified
Stock Option may be granted either at the time of grant of the related
Option or any time thereafter during its term. A Limited Right granted in
tandem with an Incentive Stock Option may only be granted at the time of
grant of the related Option.
(b) Exercise. A Limited Right may be exercised only during the
ninety-day period beginning on an Acceleration Date. Each Limited Right
shall be exercisable only if, and to the extent that, the related Option
is exercisable and, in the case of a Limited Right granted in tandem with
an Incentive Stock Option, only when the Fair Market Value per share of
Common Stock exceeds the Option Price per share. Notwithstanding the
provisions of the two immediately preceding sentences, a Limited Right
granted to a Grantee who is an Insider must be (i) held by the Insider
for at least six (6) months from the date of grant of the Limited Right
before it becomes exercisable and (ii) automatically paid out in cash
to the Insider on an Acceleration Date (provided such six (6) month
holding period requirement has been met).
(c) Amount Payable. Upon the exercise of a Limited Right, the Grantee
thereof shall receive in cash whichever of the following amounts is
applicable:
(i) in the case of the realization of Limited Rights by reason of
an acquisition of Common Stock described in Section 11 (b)(i) below,
an amount equal to the Acquisition Spread as defined in Section
10(d)(ii) hereof; or
(ii) in the case of the realization of Limited Rights by reason of
shareholder approval of an agreement or plan described in Section 11
(b)(ii) below, an amount equal to the Merger Spread as defined in
Section 10(d)(iv) hereof; or
(iii) in the case of the realization of Limited Rights by reason of
the change in composition of the Board described in Section
11(b)(iii) or shareholder approval of a plan or agreement described
in Section 11 (b)(iv) below, an amount equal to the Spread as defined
in Section 10(d)(v) hereof.
Notwithstanding the foregoing provisions of this Section 10(c), in
the case of a Limited Right granted in respect of an Incentive Stock Option,
the Grantee may not receive an amount in excess of the maximum amount that will
enable such option to continue to qualify as an Incentive Stock Option.
(d) Determination of Amounts Payable. The amounts to be paid to a
Grantee pursuant to Section 10(c) shall be determined as follows:
(i) The term "Acquisition Price per Share" as used herein shall mean,
with respect to the exercise of any Limited Right by reason of an
acquisition of Common Stock described in Section 12(b)(i) below, the
greatest of (A) the highest price per share shown on the Statement of
Schedule 13D or amendment thereto filed by the holder of 50% or more
of the voting power of the Company that gives rise to the exercise of
such Limited Right, (B) the highest price paid in any tender or
exchange offer which is in effect at any time during the ninety-day
period ending on the date of exercise of the Limited Right, or
(C) the highest Fair Market Value per share of Common Stock during
the ninety-day period ending on the date the Limited Right is
exercised.
(ii) The term "Acquisition Spread" as used herein shall mean an
amount equal to the product computed by multiplying (A) the
excess of (1) the Acquisition Price per Share over (2) the Option
Price per share of Common Stock at which the Related LSAR Option is
exercisable, by (B) the number of shares of Common Stock with respect
to which such Limited Right is being exercised.
(iii) The term "Merger Price per Share" as used herein shall mean,
with respect to the exercise of any Limited Right by reason of
shareholder approval of an agreement described in Section 11(b)(ii)
below, the greater of (A) the fixed or formula price for the
acquisition of shares of Common Stock specified in such agreement,
if such fixed or formula price is determinable on the date on which
such Limited Right is exercised, (B) the highest price paid in any
tender or exchange offer which is in effect at any time during the
ninety-day period ending on the date of exercise of the Limited
Right, or (C) the highest Fair Market Value per share of Common Stock
during the ninety-day period ending on the date on which such Limited
Right is exercised.
(iv) The term "Merger Spread' as used herein shall mean an amount
equal to the product computed by multiplying (A) the excess of
(1) the Market Price per Share over (2) the Option Price per share
of Common Stock at which the related Option is exercisable, by
(B) the number of shares of Common Stock with respect to which such
Limited Right is being exercised.
(v) The term "Spread" as used herein shall mean, with respect to the
exercise of any Limited Right by reason of a change in the
composition of the Board described in Section 11(b)(iii) or
shareholder approval of a plan or agreement described in Section
11(b)(iv) below, an amount equal to the product computed by
multiplying (i) the excess of (A) the greater of (1) the highest
price paid in any tender or exchange offer which is in effect at any
time during the ninety-day period ending on the date of exercise of
the Limited Right or (2) the highest Fair Market Value per share of
Common Stock during the ninety-day period ending on the date the
Limited Right is exercised over (B) the Option Price per share of
Common Stock at which the related Option is exercisable, by (ii) the
number of shares of Common Stock with respect to which the Limited
Right is being exercised.
(e) Treatment of Related Options and Limited Rights Upon Exercise. Upon
the exercise of a Limited Right, the related Option shall cease to be
exercisable to the extent of the shares of Common Stock with respect to
which such Limited Right is exercised, but shall be considered to have
been exercised to that extent for purposes of determining the number of
shares of Common Stock available for the grant of further awards pursuant
to this Plan. Upon the exercise or termination of a related Option, the
Limited Right with respect to such related Option shall terminate to the
extent of the shares of Common Stock with respect to which the related
Option was exercised or terminated.
(f) Method of Exercise. To exercise a Limited Right, the Grantee shall
(i) deliver written notice to the Secretary of the Company specifying the
number of shares of Common Stock with respect to which the Limited Right
is being exercised, and (ii) if requested by the Committee, deliver the
Agreement evidencing the Limited Rights being exercised and, if
applicable, the Option Agreement evidencing the related Option to the
Secretary of the Company, who shall endorse thereon a notation of such
exercise and return such Agreements to the Grantee. The date of exercise
of a Limited Right that is validly exercised shall be deemed to be the
date on which there shall have been delivered the instruments referred
to in the first sentence of this paragraph (f).
11. Effect of Certain Changes.
(a) In the event of any extraordinary dividend, stock dividend,
recapitalization, reclassification, merger, consolidation, stock split,
warrant or rights issuance, or combination or exchange of such shares,
or other similar transactions, the number of shares of Common Stock
available for awards, the number of such shares covered by outstanding
awards, and the price per share of Options or the applicable market value
of Stock Appreciation Rights or Limited Rights shall be equitably
adjusted by the Committee to reflect such event and preserve the value of
such awards; provided, however, that any fractional shares resulting from
such adjustment shall be eliminated.
(b) If, while any awards remain outstanding under the Plan, any of the
following events shall occur (which events shall constitute a "Change in
Control of the Company")---
(i) any "person," as such term is used in Sections 13(d) and 14(d)
of the Exchange Act (other than (1) the Company, (2) any trustee or
other fiduciary holding securities under an employee benefit plan of
the Company or any of its Subsidiaries, or (3) any corporation owned,
directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of Common
Stock), is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of securities
of the Company representing more than 50% of the combined voting
power of the Company's then outstanding voting securities;
(ii) during any period of not more than two consecutive years, not
including any period prior to the adoption of this Plan, individuals
who at the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction
described in clause (i), (iii), or (iv) of this Section 11(b)) whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at
least a majority thereof;
(iii) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than
(A) a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving or parent entity)
50% or more of the combined voting power of the voting securities of
the Company or such surviving or parent entity outstanding
immediately after such merger or consolidation or (B) a merger or
consolidation in which no "person" (as hereinabove defined) acquired
50% or more of the combined voting power of the Company's then
outstanding securities; or (iv) the stockholders of the Company
approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially
all of the Company's assets (or any transaction having a similar
effect) then from and after the date on which any such Change in
Control shall have occurred (the "Acceleration Date"), the award
covered by such Agreement shall be exercisable or otherwise
nonforfeitable in full, whether or not otherwise exercisable or
forfeitable.
(c) In the event of a change in the Common Stock of the Company as
presently constituted that is limited to a change of all of its authorized
shares of Common Stock into the same number of shares with a different
par value or without par value, the shares resulting from any such change
shall be deemed to be the Common Stock within the meaning of the Plan.
12. Period During Which Awards May Be Granted.
Awards may be granted pursuant to the Plan from time to time within a
period of ten (10) years from the date the Plan is adopted by the Board.
13. Nontransferability of Awards.
Awards granted under the Plan shall not be transferable otherwise than
by will or by the laws of descent and distribution, and awards may be exercised
or otherwise realized, during the lifetime of the Grantee, only by the Grantee
or by his guardian or legal representative.
14. Approval of Shareholders.
The Plan shall take effect upon its adoption by the Board but the Plan
(and any grants of awards made prior to the shareholder approval mentioned
herein) shall be subject to the approval of the holder(s) of a majority of the
issued and outstanding shares of voting securities of the Company entitled to
vote, which approval must occur within twelve months of the date the Plan is
adopted by the Board.
15. Agreement by Grantee Regarding Withholding Taxes.
If the Committee shall so require, as a condition of exercise of an
Option, Stock Appreciation Right or Limited Right (each a "Tax Event'), each
Grantee shall agree that no later than the date of the Tax Event, the Grantee
will pay to the Company or make arrangements satisfactory to the Committee
regarding payment of any federal, state or local taxes of any kind required by
law to be withheld upon the Tax Event. Alternatively, the Committee may provide
that a Grantee may elect, to the extent permitted or required by law, to have
the Company deduct federal, state and local taxes of any kind required by law
to be withheld upon the Tax Event from any payment of any kind due to the
Grantee. The withholding obligation may be satisfied by the withholding or
delivery of Common Stock.
16. Amendment and Termination of the Plan.
The Board at any time and from time to time may suspend, terminate, modify
or amend the Plan; provided, however, that an amendment which requires
stockholder approval in order for the Plan to continue to comply with Rule
16b-3 or any other law, regulation or stock exchange requirement shall not be
effective unless approved by the requisite vote of stockholders. Except as
provided in Section 11(a) hereof, no suspension, termination, modification or
amendment of the Plan may adversely affect any award previously granted without
the written consent of the Grantee.
17. Rights as a Shareholder.
A Grantee or a transferee of an award shall have no rights as a
shareholder with respect to any shares covered by the award until the date of
the issuance of a stock certificate to him for such shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property) or distribution of other rights for which the
record date is prior to the date such stock certificate is issued, except as
provided in Section 11(a) hereof.
18. No Rights to Employment.
Nothing in the Plan or in any award granted or Agreement entered into
pursuant hereto shall confer upon any Grantee the right to continue in the
employ of, or in a consultant relationship with, the Company or any Subsidiary
or to be entitled to any remuneration or benefits not set forth in the Plan or
such Agreement or to interfere with or limit in any way the right of the
Company or any such Subsidiary to terminate such Grantee's employment. Awards
granted under the Plan shall not be affected by any change in duties or
position of a Grantee as long as such Grantee continues to be employed by, or
in a consultant relationship with, the Company or any Subsidiary.
19. Beneficiary.
A Grantee may file with the Committee a written designation of a
beneficiary on such form as may be prescribed by the Committee and may, from
time to time, amend or revoke such designation. If no designated beneficiary
survives the Grantee, the executor or administrator of the Grantee's estate
shall be deemed to be the Grantee's beneficiary.
20. Governing Law.
The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the laws of the State of New York.
21. Effective Date and Duration of the Plan.
This Plan shall be effective as of the date it is ratified by the
shareholders of the Company, and shall terminate on the later of (a) the
tenth anniversary of such date or (b) the last expiration of awards granted
hereunder.
[Letterhead of OrNda HealthCorp]
Exhibit 5
January 24, 1996
OrNda HealthCorp
3401 West End Avenue
Suite 700
Nashville, TN 37203
RE: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
I am Senior Vice President, Secretary and General Counsel of OrNda
HealthCorp, a Delaware corporation (the "Company"), and have acted as counsel
to the Company in connection with the Registration Statement on Form S-8 (the
"Registration Statement") of the Company under the Securities Act of 1933, as
amended (the "Act"), relating to the registration of 3,000,000 shares (the
"Shares") of the Company's common stock, par value $.01 per share (the "Common
Stock"), issuable under the OrNda HealthCorp 1994 Management Equity Plan (the
"Plan").
This opinion is delivered in accordance with the requirements of Item
601(b) (5) of Regulation S-K promulgated under the Act.
In connection with this opinion, I have reviewed the following documents:
(a) the Registration Statement;
(b) the Restated Certificate of Incorporation of the Company;
(c) the By-laws of the Company;
(d) the Plan;
(e) certain resolutions of the Board of Directors of the Company; and
(f) except as set forth below, such other agreements, certificates of
public officials and officers of the Company, records, documents,
and matters of law that I deemed necessary or appropriate as a basis
for the opinions set forth herein.<PAGE>
January 22, 1996
Page 2
In my examination:
(a) I have assumed that (i) all signatures on all documents examined by
me are genuine, (ii) all documents submitted to me as originals are
accurate and complete, (iii) all documents submitted to me as copies
are true and correct copies of the originals thereof, (iv) all
information submitted to me is accurate and complete as of the date
hereof, (v) all persons executing and delivering documents reviewed
by me were competent to execute and to deliver such documents, and
(vi) all persons signing, in a representative capacity, documents
reviewed by me had authority to sign in such capacity.
(b) I have assumed that the exercise price of the options in respect of
Shares issued under the Plan will not be less than the par value of
such Shares at the time of issuance.
I am admitted to the bars of the States of Tennessee and New York and I
express no opinion as to the laws of any other jurisdiction except for the
federal laws of the United States of America and the General Corporation law
of the State of Delaware to the extent specifically referred to herein.
Based upon and subject to the foregoing and to the qualifications,
limitations, and exceptions contained herein, I am of the opinion that:
1. The Company is validly existing as a corporation in good standing
under the laws of the State of Delaware.
2. The Shares have been duly authorized and, when issued in accordance
with the terms of the Plan, will be validly issued, fully paid and
non-assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, I do not hereby admit that I
come into the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
(Signature)
Ronald P. Soltman
Senior Vice President, Secretary and General Counsel
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-8 (No. 33-81778) filed with the Commission on
July 20, 1994 and incorporated by reference in the Registration Statement (Form
S-8) pertaining to the OrNda HealthCorp 1994 Management Equity Plan filed with
the Commission on January 24, 1996, and we consent to the incorporation by
reference in the Registration Statement (Form S-8) pertaining to the OrNda
HealthCorp 1994 Management Equity Plan filed with the Commission on January 24,
1996 of our report dated October 10, 1995 (except for paragraph 7 of Note 6 and
paragraph 9 of Note 8, as to which the dates are October 27, 1995 and October
31, 1995 respectively), with respect to the consolidated financial statements
and schedule of OrNda HealthCorp included in its Annual Report (Form 10-K) for
the year ended August 31, 1995, filed with the Securities Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Nashville, Tennessee
January 24, 1996
Exhibit 24(b)
CERTIFICATE OF THE SECRETARY
OF
ORNDA HEALTHCORP
I, Ronald P. Soltman, Secretary of OrNda HealthCorp, do hereby certify
that the following is a true and correct copy of a resolution passed by the
Board of Directors of the Corporation on January 19, 1996, and that this
resolution is still in full force and effect and as of the date hereof has
not been in any respect altered, revised or repealed, and that the resolution
does not in any manner contravene the Articles of Incorporation or the Bylaws
of the Corporation:
RESOLVED, that each officer and director of the
Corporation who may be required to execute such
Registration Statement or any amendment thereof
(whether on behalf of the Corporation or as an officer
or director thereof) be and hereby is authorized to
execute a power of attorney appointing Keith B. Pitts
and Ronald P. Soltman, and each of them, as true and
lawful attorneys and agents, to execute in his name,
place and stead (in any such capacity) said
Registration Statement and any and all amendments
thereto, and any and all documents in connection
therewith, and to file the same with the Commission,
each of said attorneys and agents to have power to
act with or without the other and to have the full power
and authority to do and perform in the name and on
behalf of each of said officers and directors, or both,
as the case may be, every act whatsoever necessary or
advisable to be done as fully and to all intents and
purposes as any such officer or director might or
could do in person;
IN WITNESS WHEREOF, I have hereunto set my hand this 24th day of
January, 1996.
/s/ Ronald P. Soltman
Ronald P. Soltman
Secretary
