<PAGE> 1
As filed with the Securities and Exchange Commission
on December 11, 1997
Registration No. 333-_____
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
AMSURG CORP.
--------------------------
(Exact name of registrant as specified in its charter)
TENNESSEE
-----------------------------------------
(State or other jurisdiction of incorporation or organization)
62-1493316
--------------------------
(I.R.S. employer identification no.)
ONE BURTON HILLS BOULEVARD, SUITE 350
NASHVILLE, TN 37215
--------------------------
(Address of principal executive offices)
1992 STOCK OPTION PLAN
--------------------------
1997 STOCK INCENTIVE PLAN
--------------------------
(Full title of the plan)
CLAIRE M. GULMI
ONE BURTON HILLS BOULEVARD, SUITE 350
NASHVILLE, TN 37215
--------------------------
(Name and address of agent for service)
(615) 665-1283
--------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum Amount of
Title of securities Amount to be offering price aggregate offering registration
to be registered registered per share (1) price (1) fee
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------
Class A Common Stock 1,577,333 shares $9.00 $14,195,997 $4,302
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of determining the amount of the
registration fee. Such estimates have been calculated in accordance with Rule
457(h) under the Securities Act of 1933, as amended, and are based on the
average of the high and low price per share of the Registrant's Common Stock as
reported on The Nasdaq Stock Market's National Market (the "National Market") on
December 4, 1997.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by AmSurg Corp. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
hereby incorporated by reference:
1. The Registrant's Registration Statement on Form 10 dated March
11, 1997 filed pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as
amended (the "Form 10");
2. The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended June 30, 1997 and September 30, 1997; and
3. The description of the Registrant's Class A Common Stock, no
par value per share (the "Class A Common Stock"), contained in
the Form 10, including all amendments and reports filed for
the purpose of updating such description prior to the
termination of the offering of the Class A Common Stock
offered hereby.
All documents and reports subsequently filed by the Registrant pursuant
to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date hereof
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all shares offered hereby have been sold or which
deregisters all shares then remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing of such
documents. Any statements contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or replaced for
purposes hereof to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein) modifies or replaces such statement. Any
statement so modified or replaced shall not be deemed, except as so modified or
replaced, to constitute a part hereof.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
II-1
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Class A Common Stock registered hereby
will be passed upon for the Registrant by Bass, Berry & Sims PLC, Nashville,
Tennessee. Certain members of Bass, Berry & Sims PLC beneficially own 136,434
shares of Class A Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Tennessee Business Corporation Act (the "TBCA") provides that a
corporation may indemnify any of its directors and officers against liability
incurred in connection with a proceeding if: (a) such person acted in good
faith; (b) in the case of conduct in an official capacity with the corporation,
he reasonably believed such conduct was in the corporation's best interests; (c)
in all other cases, he reasonably believed that his conduct was at least not
opposed to the best interests of the corporation; and (d) in connection with any
criminal proceeding, such person had no reasonable cause to believe his conduct
was unlawful. In actions brought by or in the right of the corporation, however,
the TBCA provides that no indemnification may be made if the director or officer
was adjudged to be liable to the corporation. The TBCA also provides that in
connection with any proceeding charging improper personal benefit to an officer
or director, no indemnification may be made if such officer or director is
adjudged liable on the basis that such personal benefit was improperly received.
Notwithstanding the foregoing, the TBCA provides that a court of competent
jurisdiction, unless the corporation's charter provides otherwise, upon
application, may order that an officer or director be indemnified for reasonable
expenses if, in consideration of all relevant circumstances, the court
determines that such individual is fairly and reasonably entitled to
indemnification, notwithstanding the fact that: (a) such officer or director was
adjudged liable to the corporation in a proceeding by or in the right of the
corporation; (b) such officer or director was adjudged liable on the basis that
personal benefit was improperly received by him; or (c) such officer or director
breached his duty of care to the corporation.
The Registrant's Charter and Bylaws require the Registrant to indemnify
its directors and officers to the fullest extent permitted by law with respect
to all liability and loss suffered and expense reasonably incurred by such
person in any action, suit or proceeding in which such person was or is made, or
threatened to be made, a party, or is otherwise involved by reason of the fact
that such person is or was a director or officer of the Registrant.
In addition, the Registrant's Charter provides that Registrant's
directors shall not be personally liable to the Registrant or its shareholders
for monetary damages for breach of any fiduciary duty as a director of the
Registrant except to the extent such exemption from liability or limitation
thereof is not permitted under the TBCA. Under the TBCA, this provision does not
relieve the Registrant's directors from personal liability to the Registrant or
its shareholders for monetary damages for breach of fiduciary duty as a
director, to the extent such liability arises from
II-2
<PAGE> 4
a judgment or other final adjudication establishing: (a) any breach of the
director's duty of loyalty; (b) acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; or (c) any
unlawful distributions. Nor does this provision eliminate the duty of care and,
in appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Tennessee law. Finally,
this provision does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
The Registrant has entered into indemnification agreements with all of
its directors and executive officers providing that it will indemnify those
persons to the fullest extent permitted by law against claims arising out of
their actions as officers or directors of the Registrant and will advance
expenses of defending claims against them. The Registrant believes that
indemnification under these agreements covers at least negligence and gross
negligence by the directors and officers, and requires the Registrant to advance
litigation expenses in the case of actions, including stockholder derivative
actions, against an undertaking by the officer or director to repay any advances
if it is ultimately determined that the officer or director is not entitled to
indemnification.
The Registrant believes that its Charter and Bylaw provisions and
indemnification agreements are necessary to attract and retain qualified persons
as directors and officers.
At present, there is no litigation or proceeding involving a director
or officer of Registrant as to which indemnification is being sought, nor is the
Registrant aware of any threatened litigation that may result in claims for
indemnification by any officer or director.
Pursuant to Management and Human Resources Agreement between the
Registrant and American Healthcorp, Inc. ("AHC") (the "Management
Agreement"), the Registrant will indemnify and hold AHC, its directors,
officers, employees and agents and any person who controls AHC within the
meaning of the Securities Act of 1933, as amended (the "Securities Act") in the
absence of gross negligence, harmless from and against any and all liabilities,
claims or damages (including the cost of investigating any claim and reasonable
attorneys' fees and disbursements) in connection with any services performed by
AHC pursuant to the Management Agreement or any transactions or conduct in
connection therewith.
The Registrant has purchased an executive liability insurance policy
which will provide coverage for its directors and officers. Under this policy,
the insurer will agree to pay, subject to certain exclusions (including
violations of securities laws), for any claim made against a director or officer
of the Registrant for a wrongful act by such director or officer, but only if
and to the extent such director or officer becomes legally obligated to pay such
claim or the Registrant is required to indemnify the director or officer for
such claim.
II-3
<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
See Exhibit Index (page II-8).
ITEM 9. UNDERTAKINGS.
A. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(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, (a)(1)(i) and (a)(1)(ii) do not apply if the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(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.
II-4
<PAGE> 6
B. The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in this 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 may be permitted to directors, officers, and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer, or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Nashville, State of Tennessee, on the 11th day of
December, 1997.
AMSURG CORP.
By: /s/ KEN P. MCDONALD
------------------------
Ken P. McDonald
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears
below hereby constitutes and appoints Ken P. McDonald and Claire M. Gulmi 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 to this Registration
Statement, and to file the same, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents 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 their 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------------- ---------------------------------------------- ------------------------
<S> <C> <C>
/s/ KEN P. MCDONALD
- ------------------------------------- President, Chief Executive Officer December 11, 1997
Ken P. McDonald and Director (Principal Executive Officer)
/s/ CLAIRE M. GULMI
- ------------------------------------- Senior Vice President, Chief Financial December 11, 1997
Claire M. Gulmi Officer and Secretary
(Principal Financial and Accounting
Officer)
</TABLE>
II-6
<PAGE> 8
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------------- ---------------------------------------------- ------------------------
<S> <C> <C>
/s/ THOMAS G. CIGARRAN
- ------------------------------------- Director December 9, 1997
Thomas G. Cigarran
- ------------------------------------- Director
James A. Deal
- ------------------------------------- Director
Steven I. Geringer
- ------------------------------------- Director
Debora A. Guthrie
/s/ HENRY D. HERR
- ------------------------------------- Director December 9, 1997
Henry D. Herr
/s/ BERGEIN F. OVERHOLT
- ------------------------------------- Director December 9, 1997
Bergein F. Overholt, M.D.
</TABLE>
II-7
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
4.1 Amended and Restated Charter of AmSurg Corp. (incorporated by
reference to Exhibit 3.1 of the Registrant's Registration Statement on
Form 10, as amended (filed with the Commission on March 11, 1997))
4.2 Amended and Restated Bylaws of AmSurg Corp. (incorporated by
reference to Exhibit 3.2 of the Registrant's Registration Statement on
Form 10, as amended (filed with the Commission on March 11, 1997))
4.3 1992 Stock Option Plan, as amended
4.4 1997 Stock Incentive Plan (incorporated by reference to Exhibit 10.8
of the Registrant's Registration Statement on Form 10, as amended,
(filed with the Commission on March 11, 1997))
5 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included on page II-5)
</TABLE>
II-8
<PAGE> 1
EXHIBIT 4.3
AMSURG CORP.
1992 STOCK OPTION PLAN
1. Purpose. The purpose of the AmSurg Corp. 1992 Stock Option
Plan (the "Plan") is to advance the growth and prosperity of AmSurg Corp. (the
"Company") and its subsidiaries by providing key employees with an additional
incentive to contribute to the best interests of the Company. Without
prejudice to other compensation programs approved from time to time by the
Board of Directors (the "Board") and/or shareholders of the Company, such
additional incentive is to be given key employees by means of stock options
provided for under the Plan. In the discretion of the Committee hereinafter
provided for and the Board, such options may be "Incentive Stock Options"
within the meaning of Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code"), or "non-statutory" stock options.
2. Administration of the Plan.
(a) The Plan shall be administered by the Board unless and
until such time as the Board delegates administration to a committee pursuant
to subparagraph 2(c) (the "Committee"). Upon such date as the Company has a
class of equity security registered under Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Board shall
administer the Plan only if all of its members are disinterested persons. For
the purposes of this paragraph 2, disinterested person shall mean a person who
has not at any time within one year prior to the date in question participated
in the Plan or any other plan of the Company or any of its subsidiaries
entitling the participants therein to acquire stock or stock options of the
Company; provided, however, that a disinterested person may participate in a
plan that meets any of the exceptions contained in Rule 16b-3(c)(2) as
promulgated under the Exchange Act, as it may be amended from time to time.
(b) The Board shall have the power, subject to, and
within, the limits of the express provisions of the Plan:
(i) To determine from time to time which of the
eligible persons shall be granted options under the Plan, the
term of each granted option, the time or times during the term
of each option within which all or portions of each option may
be exercised, whether the options granted shall be Incentive
Stock Options or non-statutory options, and the number of
shares for which each option shall be granted.
(ii) To construe and interpret the Plan and
options granted under it, and to establish, amend and revoke
rules and regulations for its administration. The Board, in
the exercise of this power, shall generally determine all
questions of policy and expediency that may arise and may
correct any defect, omission or inconsistency in the Plan or
in any option agreement in a manner and to the extent it shall
deem necessary or expedient to make the Plan fully effective.
<PAGE> 2
(iii) To prescribe the terms and provisions of each option
granted (which need not be identical).
(iv) To amend the Plan as provided herein.
(v) Generally, to exercise such powers and to perform
such acts as are deemed necessary or expedient to promote the best
interests of the Company.
(c) The Board, by resolution, may delegate administration
of the Plan (including, without limitation, the Board's powers under
subparagraph 2(b)) to a Committee composed of not less than two (2) members,
which committee, upon such time as the Company has a class of equity security
registered under Section 12 of the Exchange Act, will be constituted so as to
permit the Plan to comply with Rule 16b-3 thereunder. If administration is
delegated to a Committee, the Committee shall have, in connection with the
administration of the Plan, the powers theretofore possessed by the Board,
subject, however, to such constraints, not inconsistent with the provisions of
the Plan, as may be adopted from time to time by the Board. The Board at any
time may remove members from or add members to the Committee or may abolish the
Committee and revest in the Board the administration of the Plan. Vacancies on
the Committee, howsoever caused, shall be filled by the Board.
(d) The interpretation and construction by the Board of
any provisions of the Plan or of any option granted under it shall be final,
and the interpretation or construction by any Committee appointed pursuant to
subparagraph 2(c) of any such provisions or option shall also, unless otherwise
determined by the Board, be final. No member of such Committee or of the Board
shall be liable for any action or determination made in good faith with respect
to the Plan or any option granted under it.
3. Eligible Employees. The Board or the Committee shall
determine from time to time those officers and key employees of the Company
and its subsidiaries to whom options shall be granted and, pursuant to the
provisions of the Plan, the amount thereof and the terms and conditions,
including requirements as to continued employment by the participant, upon
which such options or rights are granted and are exercisable. Directors of
the Company who are not also employees of the Company or its subsidiaries
shall not be eligible to participate in the Plan.
4. The Stock. The stock subject to the options and other
provisions of the Plan shall be shares of the Company's authorized and unissued
Common Stock, no par value, or reacquired Common Stock held in the treasury.
The total number of shares of the Company's Common Stock that may be
transferred pursuant to the exercise of stock options under the Plan shall not
exceed in the aggregate 1,532,000 shares. Shares subject to options which
terminate or expire prior to exercise shall be available for further option
hereunder.
Each option granted under this Plan shall be subject to the requirement
that if at any time the Board or the Committee shall determine that the
listing, registration or qualification of the shares subject thereto upon any
securities exchange or under any state or Federal law, or the
2
<PAGE> 3
consent or approval of any governmental regulatory body is necessary or
desirable in connection with the issue or transfer of shares subject thereto,
no such option may be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board or the Committee.
If required at any time by the Board or the Committee, an option may not be
exercised until the optionee has delivered an investment letter to the Company
containing the representations that all shares being purchased are being
acquired for investment and not with a view to, or for resale in connection
with, any distribution of such shares.
5. Terms and Conditions of Options. All stock options granted
pursuant to the Plan shall be in such form as the Board or the Committee shall
from time to time determine, shall clearly indicate whether such option is an
Incentive Stock Option or a non-statutory stock option, and shall be subject
to the following terms and conditions:
(a) Option Price. The price per share for Common Stock
under each option granted under the Plan shall be determined and fixed by the
Board or the Committee but, in the case of Incentive Stock Options, shall in
no event be less than 100% of the fair market value of the Common Stock on the
date of grant of such option, and, in the case of non-statutory stock options,
shall in no event be less than 85% of the fair market value of the Common
Stock on the date of grant of such option. In the case of the grant of an
Incentive Stock Option to an individual who, at the time of the grant, owns
more than 10% of the total combined voting power of all classes of stock of
the Company, such price per share shall not be less than 110% of the fair
market value of the Common Stock on the date of grant of the option.
(b) Option Period. The period during which an option
may be exercised shall be determined by the Board or the Committee, provided,
however, that in no event shall an Incentive Stock Option be exercisable after
the expiration of 10 years from the date such option was granted; and provided
further that in the case of the grant of an Incentive Stock Option to an
individual who, at the time of the grant, owns more than 10% of the total
combined voting power of all classes of stock of the Company, in no event shall
such option be exercisable more than five years from the date of the grant.
Options may be made exercisable in installments, and such options or
installments thereof may be exercised in part from time to time after they
become exercisable. The maturity of any installment or installments may be
accelerated at the discretion of the Board or the Committee.
In the event that a participant shall cease to be employed by the
Company or one of its subsidiaries for any reason other than his death, all
options held by him pursuant to the Plan and not previously exercised at the
date of such termination shall terminate immediately and become void and of no
effect; provided, however, that the Board or the Committee shall have the right
to extend the exercise period not in excess of three months following the date
of termination of the participant's employment, subject to the further
condition, however, that no Incentive Stock Option shall be exercisable after
the expiration of 10 years from the date it is granted, and subject to the
further condition that in the case of the grant of an Incentive Stock Option to
an individual who, at the time of the grant, owns more than 10% of the total
combined voting
3
<PAGE> 4
power of all classes of stock of the Company, in no event shall such option be
exercisable more than five years from the date of the grant. Notwithstanding
the foregoing, if the termination is due to disability, or to retirement with
the consent of the Company, such disabled or retiring participant shall have
the right to exercise his options which have not previously been exercised at
the date of such termination of employment at any time within three months
after such termination, subject to the condition that no Incentive Stock Option
shall be exercisable after the expiration of 10 years from the date it is
granted, and subject to the further condition that in the case of the grant of
an Incentive Stock Option to an individual who, at the time of the grant, owns
more than 10% of the total combined voting power of all classes of stock of the
Company, in no event shall such option be exercisable more than five years from
the date of the grant. Whether termination of employment is due to disability
or is to be considered retirement with the consent of the Company shall be
determined by the Board or the Committee, which determination shall be final
and conclusive.
If the participant should die while in the employ of the Company or a
subsidiary of the Company or within a period of three months after the
termination of his employment by retirement and shall not have fully exercised
options granted under the Plan, such options may be exercised in whole or in
part at any time within 12 months after the participant's death by the
executors or administrators of the participant's estate or by any person or
persons who shall have acquired the options directly from the participant by
bequest or inheritance, subject to the condition that no Incentive Stock
Option shall be exercisable after the expiration of 10 years from the date it
is granted, and subject to the further condition that in the case of the grant
of an Incentive Stock Option to an individual who, at the time of the grant,
owns more than 10% of the total combined voting power of all classes of stock
of the Company, in no event shall such option be exercisable more than five
years from the date of the grant.
The exercise of an option granted under the Plan shall not affect the
optionee's right or ability to exercise any other option granted under the Plan
or any other stock option plan of the Company or its subsidiaries.
(c) Limitations on Grants. No Incentive Stock Option shall be
granted to any participant under the Plan if the aggregate fair market value
(as of the date the option is granted) of the Common Stock with respect to
which Incentive Stock Options are exercisable for the first time by such
participant during any calendar year (under all such plans of the Company and
any subsidiary of the Company) exceeds $100,000.
(d) Limitations on Disposition. To obtain the tax benefits
associated with Incentive Stock Options, the optionee must make no disposition
of shares acquired pursuant to the exercise of an Incentive Stock Option
within two years from the granting of such Incentive Stock Option or within
one year from the date of the exercise of such Incentive Stock Option.
(e) Holding Period. Upon such time as the Company has a
class of equity security registered under Section 12 of the Exchange Act,
in order for the grant of an option under the Plan to be exempt from Section
16(b) of the Exchange Act, the optionee must make
4
<PAGE> 5
no disposition of the option (other than upon exercise) or the shares acquired
pursuant to the exercise of the option, for a period of six months after the
date of grant of such option.
6. Payment for Stock. Payment for shares subject to options
granted under the Plan shall be made by the optionee in the form of cash or by
means of unrestricted shares of the Company's Common Stock or any combination
thereof. Payment shall be made upon the exercise of the option. Payment in
currency or by check, bank draft, cashier's check or postal money order shall
be considered payment in cash. In the event of payment in the Company's
Common Stock, the shares used in payment of the purchase price shall be
considered payment to the extent of their fair market value on the date of
exercise of the option.
7. Non-Assignability. No option shall be transferable otherwise
than by will or the laws of descent and distribution and an option is
exercisable during the lifetime of the optionee only by him.
8. Adjustment Upon Changes in Stock.
(a) The number of shares of Common Stock available for
the granting of options under the Plan and the number of shares and price per
share of Common Stock subject to outstanding options granted pursuant to the
Plan may be adjusted by the Board or the Committee in an equitable manner to
reflect changes in the capitalization of the Company, including, but not
limited to, such changes as result from merger, consolidation, reorganization,
recapitalization, stock dividend, dividend in property other than cash, stock
split, liquidating dividend, combination of shares, exchange of shares and
change in corporate structure. If any adjustment under this subparagraph 8(a)
would create a fractional share of Common Stock or a right to acquire a
fractional share of Common Stock, such fractional share shall be disregarded
and the number of shares available under the Plan and the number covered under
any options granted pursuant to the Plan shall be the next lower number of
shares, rounding all fractions downward.
(b) Notwithstanding the foregoing, in the event of: (1) a
dissolution or liquidation of the Company; (2) a sale of all or substantially
all of the assets of the Company; (3) a merger or share exchange in which the
Company is not the surviving corporation; or (4) other capital reorganization
in which more than fifty percent (50%) of the shares of the Company entitled to
vote are exchanged, any outstanding options hereunder immediately shall be fully
exercisable by an optionee.
(c) Any adjustment made by the Board or the Committee
under this paragraph 8 shall be conclusive and binding on all affected persons.
No Incentive Stock Option granted pursuant to the Plan shall be adjusted in a
manner that causes such Incentive Stock Option to fail to continue to qualify
as an Incentive Stock Option within the meaning of Section 422A of the Code.
9. The Board from time to time may amend this Plan, but except
as provided above with respect to dilutions or other adjustments or mergers or
share exchanges,
5
<PAGE> 6
or with the approval of the Company's shareholders, may not (a) increase the
aggregate number of shares available for option hereunder, (b) change the price
at which options may be granted, (c) extend the maximum period during which an
option may be exercised, or (d) change the eligibility requirements for options
hereunder. Rights and obligations under any option granted before amendment of
the Plan shall not be altered or impaired by amendment of the Plan, except with
the consent of the person to whom the option was granted.
10. Fair Market Value of Stock. Whenever pursuant to the terms
of the Plan the fair market value of the Company's Common Stock is required to
be determined as of a particular date, such fair market value shall equal the
last sale price of the Common Stock on the principal exchange on which the
Common Stock is then listed, or if the Common Stock is not then listed on any
exchange, on the National Association of Securities Dealers Automated Quotation
National Market System ("NMS"), or, if price quotations for the Common Stock are
not available on NMS, the mean between the closing bid and asked price of the
Common Stock on the National Association of Securities Dealers Automated
Quotation System ("NASDAQ"), or if no bid quotation is available on NASDAQ, the
fair value of such Common Stock as determined by the Board, in each case, on
the business day immediately preceding the date on which the determination is
made. Fair market value shall be determined in all cases without regard to any
restriction other than a restriction which, by its terms, will never lapse.
11. No Rights as Shareholder. A participant in the Plan shall
have no rights as a shareholder with respect to any shares covered by his
option until the date of the issuance of a stock certificate to him. No
adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date is prior to the date such stock certificate is issued.
12. Indemnification of Committee. In addition to such other
rights of indemnification as they may have as directors or as members of the
Committee, the members of the Committee shall be indemnified by the Company
against the reasonable expenses, including attorneys' fees actually and
necessarily incurred in connection with the defense of any action, suit or
proceeding, or in connection with any appeal therein, to which they or any of
them may be a party by reason of any action taken or failure to act under or in
connection with the Plan or any option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is
approved by independent legal counsel selected by the Company) or paid by them
in satisfaction of a judgment in any such action, suit or proceeding, except in
relation to matters as to which it shall be adjudged in such action, suit or
proceeding that such Committee member is liable for negligence or misconduct in
the performance of his duties; provided that within 60 days after institution
of any such action, suit or proceeding, the Committee member shall in writing
offer the Company the opportunity, at its own expense, to handle and defend the
same.
13. Termination. This Plan shall terminate on April 2, 2002,
unless sooner terminated by action of the Board. No option may be granted
hereunder after termination of the Plan, but such termination shall not affect
the validity of any option then outstanding.
6
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14. Shareholder Approval. The Plan shall be subject to approval
by the holders of a majority of the outstanding shares of Common Stock of the
Company present and voting at a meeting of shareholders, which approval must
occur within the period ending 12 months after the date the Plan is adopted by
the Board, provided, however, that options may be granted thereunder when all
the conditions (other than shareholder approval) precedent to the granting of
options under the Plan have been completed by the Company.
7
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EXHIBIT A
AMENDMENT NO. 1 TO
AMSURG CORP. 1992 STOCK OPTION PLAN
Pursuant to subparagraph 8(a) of the AmSurg Corp. 1992 Stock Option
Plan ("1992 Plan"), the Board of Directors of AmSurg Corp. (the "Company")
hereby amends the Plan so that the second sentence of paragraph 4 read as
follows:
"The total number of shares of the Company's Common Stock that may be
issued pursuant to the exercise of stock options under the Plan shall
not exceed in the aggregate 2,032,000 shares."
Dated: September 17, 1993
Date approved by the Company's shareholders: 10/20/93
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<PAGE> 9
EXHIBIT A
AMENDMENT NO. 2 TO
AMSURG CORP. 1992 STOCK OPTION PLAN
Pursuant to subparagraph 8(a) of the AmSurg Corp. 1992 Stock Option
Plan ("Plan"), the Board of Directors of AmSurg Corp. (the "Company") hereby
amends the Plan so that the second sentence of paragraph 4 read as follows:
"The total number of shares of the Company's Common Stock that may be
issued pursuant to the exercise of stock options under the Plan shall
not exceed in the aggregate 2,782,000 shares."
Dated: February 17, 1995
Date approved by the Company's shareholders: 4/21/95
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EXHIBIT 5
B A S S, B E R R Y & S I M S P L C
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER
NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509
TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509
TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200
TELECOPIER (423) 521-6234
December 8, 1997
AmSurg Corp.
One Burton Hills Boulevard, Suite 350
Nashville, Tennessee 37215
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") relating to the Company's
1992 Stock Option Plan and 1997 Stock Incentive Plan (the "Plans") filed by you
with the Securities and Exchange Commission covering 1,577,333 shares (the
"Shares") of Class A common stock, no par value per share, issuable pursuant to
the Plans.
In so acting, we have examined and relied upon such records, documents,
and other instruments as in our judgment are necessary or appropriate in order
to express the opinions hereinafter set forth and have assumed the genuineness
of all signatures, 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.
Based on the foregoing, we are of the opinion that the Shares, when
issued pursuant to and in accordance with the Plans, will be validly issued,
fully paid, and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ BASS, BERRY & SIMS PLC
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
AmSurg Corp. on Form S-8 of our reports dated February 21, 1997 with respect to
AmSurg Corp., January 8, 1997 with respect to Endoscopy Center of Ocala, Inc.
and October 7, 1997 with respect to The Endoscopy Center, Inc., appearing in the
Form 10 of AmSurg Corp. as amended on November 3, 1997.
/s/ DELOITTE & TOUCHE
Nashville, Tennessee
December 8, 1997
