<PAGE> 1
As Filed With the Securities and Exchange Commission
on March 30, 2000
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 62-1493316
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
20 BURTON HILLS BOULEVARD
NASHVILLE, TENNESSEE 37215
(Address of Principal Executive Offices) (Zip Code)
AMSURG CORP.
1997 STOCK INCENTIVE PLAN, AS AMENDED
(Full title of the plan)
CLAIRE M. GULMI
20 BURTON HILLS BOULEVARD
NASHVILLE, TENNESSEE 37215
(Name and address of agent for service)
(615) 665-1283
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of registration
be registered registered offering price per share aggregate offering price fee
==================================================================================================================================
<S> <C> <C> <C> <C>
Class A Common Stock 470,000 shares(1) $6.19 (2) $2,909,300 (2) $768.06
==================================================================================================================================
</TABLE>
(1) Represents 470,000 shares reserved for issuance pursuant to future
grants under the Company's 1997 Stock Incentive Plan.
(2) Estimated solely for the purpose of determining the amount of the
registration fee pursuant to 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 Class A Common Stock as reported
on The Nasdaq Stock Market's National Market (the "National Market")
on March 27, 2000.
<PAGE> 2
REGISTRATION OF ADDITIONAL SECURITIES
This Registration Statement is filed pursuant to General Instruction E
of Form S-8 for the purpose of registering additional shares of common stock,
no par value, of AmSurg Corp., a Tennessee corporation (the "Registrant"), for
the Registrant's 1997 Stock Incentive Plan, as amended.
INCORPORATION BY REFERENCE OF EARLIER REGISTRATION STATEMENTS
The Registration Statement on Form S-8 (Registration No. 333-41961)
previously filed by the Registrant with the Securities and Exchange Commission
on December 11, 1997 is hereby incorporated by reference herein.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit Number Description
---------------- ---------------------------------------------------------------------------------
<S> <C>
4.1 AmSurg Corp. 1997 Stock Incentive Plan, as amended
4.2 Specimen Class A Common Stock certificate (incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on Form 10, as
amended (filed with the Commission on March 11, 1997))
4.3 Specimen Class B Common Stock certificate (incorporated by reference to
Exhibit 4.2 of the Company's Registration Statement on Form 10, as
amended (filed with the Commission on March 11, 1997))
4.4 Article 7 of the Company's Amended and Restated Charter (incorporated by
reference to Exhibit 3 of the Current Report on Form 8-K, dated December
3, 1999)
4.5 Article 2 of the Company's Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.2 to the Registration Statement on Form 10, as
amended (filed with the Commission on March 11, 1997))
4.6 Rights Agreement, dated December 2, 1999, between AmSurg Corp. and SunTrust
Bank Atlanta, including the Form of Rights Certificate (Exhibit A), the
Form of Summary of Rights (Exhibit B) and the Form of Articles of Amendment to
the Amended and Restated Charter of AmSurg Corp. (Exhibit C) (incorporated by
reference to Exhibit 4 of the Current Report on Form 8-K, dated December 3, 1999)
5.1 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
24.1 Power of Attorney (included on page II-3)
</TABLE>
II-2
<PAGE> 3
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 this 30th day
of March, 2000.
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 attorney-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 and Chief Executive Officer March 30, 2000
- --------------------------------- (Principal Executive Officer)
Ken P. McDonald
/s/ Claire M. Gulmi Senior Vice President, Chief Financial March 30, 2000
- -------------------------------- Officer and Secretary (Principal
Claire M. Gulmi Financial and Accounting Officer)
/s/ Thomas G. Ciggaran Chairman of the Board March 30, 2000
- -------------------------------
Thomas G. Ciggaran
Director March , 2000
- -------------------------------
James A. Deal
Director March , 2000
- -------------------------------
Steven I. Geringer
Director March , 2000
- -------------------------------
Debora A. Guthrie
/s/ Henry D. Herr Director March 30, 2000
- -------------------------------
Henry D. Herr
/s/ Bergein F. Overholt, M.D. Director March 30, 2000
- -------------------------------
Bergein F. Overholt, M.D.
</TABLE>
II-3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
---------------- ---------------------------------------------------------------------------------
<S> <C>
4.1 AmSurg Corp. 1997 Stock Incentive Plan, as amended
4.2 Specimen Class A Common Stock certificate (incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on Form 10, as
amended (filed with the Commission on March 11, 1997))
4.3 Specimen Class B Common Stock certificate (incorporated by reference to
Exhibit 4.2 of the Company's Registration Statement on Form 10, as
amended (filed with the Commission on March 11, 1997))
4.4 Article 7 of the Company's Amended and Restated Charter (incorporated by
reference to Exhibit 3 of the Current Report on Form 8-K, dated December
3, 1999)
4.5 Article 2 of the Company's Amended and Restated Bylaws (incorporated by
reference to Exhibit 3.2 to the Registration Statement on Form 10, as
amended (filed with the Commission on March 11, 1997))
4.6 Rights Agreement, dated December 2, 1999, between AmSurg Corp. and SunTrust
Bank Atlanta, including the Form of Rights Certificate (Exhibit A), the
Form of Summary of Rights (Exhibit B) and the Form of Articles of Amendment to
the Amended and Restated Charter of AmSurg Corp. (Exhibit C) (incorporated by
reference to Exhibit 4 of the Current Report on Form 8-K, dated December 3, 1999)
5.1 Opinion of Bass, Berry & Sims PLC
23.1 Consent of Deloitte & Touche, LLP
23.2 Consent of Bass, Berry & Sims PLC (included in Exhibit 5)
24.1 Power of Attorney (included on page II-3)
</TABLE>
<PAGE> 1
[as amended; restated for SEC
filing purposes only]
EXHIBIT 4.1
AMSURG CORP.
1997 STOCK INCENTIVE PLAN
SECTION 1. PURPOSE; DEFINITIONS.
The purpose of the AmSurg Corp. 1997 Stock Incentive Plan (the "Plan")
is to enable AmSurg Corp., a Tennessee corporation (the "Corporation") to
attract, retain and reward key employees of and consultants to the Corporation
and its Subsidiaries and Affiliates, and directors who are not also employees
of the Corporation, and to strengthen the mutuality of interests between such
key employees, consultants, and directors by awarding such key employees,
consultants, and directors performance-based stock incentives and/or other
equity interests or equity-based incentives in the Corporation, as well as
performance-based incentives payable in cash. The creation of the Plan shall
not diminish or prejudice other compensation programs approved from time to
time by the Board.
For purposes of the Plan, the following terms shall be defined as set
forth below:
A. "Affiliate" means any entity other than the Corporation and
its Subsidiaries that is designated by the Board as a participating employer
under the Plan, provided that the Corporation directly or indirectly owns at
least 20% of the combined voting power of all classes of stock of such entity
or at least 20% of the ownership interests in such entity.
B. "Board" means the Board of Directors of the Corporation.
C. "Cause" has the meaning provided in Section 5(j) of the Plan.
D. "Change in Control" has the meaning provided in Section 10(b)
of the Plan.
E. "Change in Control Price" has the meaning provided in Section
10(d) of the Plan.
F. "Common Stock" means (i) prior to the Distribution, the
Corporation's Common Stock, without par value, and (ii) following the
Distribution, the Corporation's Class A Common Stock, without par value.
G. "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
H. "Committee" means the Committee referred to in Section 2 of
the Plan.
I. "Corporation" means AmSurg Corp., a corporation organized
under the laws of the State of Tennessee or any successor corporation.
<PAGE> 2
J. "Disability" means disability as determined in accordance
with Corporation's policies in effect from time to time.
K. "Distribution" means the Distribution contemplated by that
certain Distribution Agreement, dated as of March 7, 1997, by and between
American Healthcorp, Inc. and the Corporation.
L. "Early Retirement" means retirement, for purposes of this
Plan with the express consent of the Corporation at or before the time of such
retirement, from active employment with the Corporation and any Subsidiary or
Affiliate prior to age 65, in accordance with any applicable early retirement
policy of the Corporation then in effect or as may be approved by the
Committee.
M. "Effective Date" has the meaning provided in Section 14 of
the Plan.
N. "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor thereto.
O. "Fair Market Value" means with respect to the Common Stock,
as of any given date or dates, unless otherwise determined by the Committee in
good faith, the reported closing price of a share of Common Stock on The Nasdaq
Stock Market National Market or such other market or exchange as is the
principal trading market for the Common Stock, or, if no such sale of a share
of Common Stock is reported on The Nasdaq Stock Market National Market or other
exchange or principal trading market on such date, the fair market value of a
share of Common Stock as determined by the Committee in good faith.
P. "Incentive Stock Option" means any Stock Option intended to
be and designated as an "Incentive Stock Option" within the meaning of Section
422 of the Code.
Q. "Immediate Family" means any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall
include adoptive relationships.
R. "Non-Employee Director" means a member of the Board who is a
Non-Employee Director within the meaning of Rule 16b-3(b)(3) promulgated under
the Exchange Act and an outside director within the meaning of Treasury
Regulation Sec. 162-27(e)(3) promulgated under the Code.
S. "Non-Qualified Stock Option" means any Stock Option that is
not an Incentive Stock Option.
T. "Normal Retirement" means retirement from active employment
with the Corporation and any Subsidiary or Affiliate on or after age 65.
U. "Other Stock-Based Award" means an award under Section 8
below that is valued in whole or in part by reference to, or is otherwise based
on, the Common Stock.
<PAGE> 3
V. "Outside Director" means a member of the Board who is not an
officer or employee of the Corporation or any Subsidiary or Affiliate of the
Corporation. A Board member who serves as a medical director but is not either
an officer or employee will be deemed to be an Outside Director.
W. "Outside Director Restricted Stock" means an award to an
Outside Director under Section 9 below.
X. "Plan" means this 1997 Stock Incentive Plan, as amended from
time to time.
Y. "Restricted Stock" means an award of shares of Common Stock
that is subject to restrictions under Section 7 of the Plan.
Z. "Restriction Period" has the meaning provided in Section 7 of
the Plan.
AA. "Retirement" means Normal or Early Retirement.
BB. "Section 162(m) Maximum" has the meaning provided in Section
3(a) hereof.
CC. "Stock Appreciation Right" means the right pursuant to an
award granted under Section 6 below to surrender to the Corporation all (or a
portion) of a Stock Option in exchange for an amount equal to the difference
between (i) the Fair Market Value, as of the date such Stock Option (or such
portion thereof) is surrendered, of the shares of Common Stock covered by such
Stock Option (or such portion thereof), subject, where applicable, to the
pricing provisions in Section 6(b)(ii), and (ii) the aggregate exercise price
of such Stock Option (or such portion thereof).
DD. "Stock Option" or "Option" means any option to purchase
shares of Common Stock (including Restricted Stock, if the Committee so
determines) granted pursuant to Section 5 below.
EE. "Subsidiary" means any corporation (other than the
Corporation) in an unbroken chain of corporations beginning with the
Corporation if each of the corporations (other than the last corporation in the
unbroken chain) owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.
SECTION 2. ADMINISTRATION.
The Plan shall be administered by a Committee of not less than two
Non-Employee Directors, who shall be appointed by the Board and who shall serve
at the pleasure of the Board. Decisions of the Committee may be ratified by the
Board. The functions of the Committee specified in the Plan may be exercised by
an existing Committee of the Board composed exclusively of Non-Employee
Directors. The initial Committee shall be the Compensation Committee of the
Board.
The Committee shall have authority to grant, pursuant to the terms of
the Plan, to officers, other key employees, Outside Directors and consultants
eligible under Section 4: (i) Stock Options, (ii) Stock Appreciation Rights,
(iii) Restricted Stock, and/or (iv) Other Stock-Based Awards; provided,
however, that the power to grant
<PAGE> 4
and establish the terms and conditions of awards to Outside Directors under the
Plan other than pursuant to Section 9 shall be reserved to the Board.
In particular, the Committee, or the Board, as the case may be, shall
have the authority, consistent with the terms of the Plan:
(a) to select the officers, key employees and Outside
Directors of and consultants to the Corporation and its Subsidiaries
and Affiliates to whom Stock Options, Stock Appreciation Rights,
Restricted Stock, and/or Other Stock-Based Awards may from time to
time be granted hereunder;
(b) to determine whether and to what extent Incentive
Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights,
Restricted Stock, and/or Other Stock-Based Awards, or any combination
thereof, are to be granted hereunder to one or more eligible persons;
(c) to determine the number of shares to be covered by
each such award granted hereunder;
(d) to determine the terms and conditions, not
inconsistent with the terms of the Plan, of any award granted
hereunder (including, but not limited to, the share price and any
restriction or limitation, or any vesting acceleration or waiver of
forfeiture restrictions regarding any Stock Option or other award
and/or the shares of Common Stock relating thereto, based in each case
on such factors as the Committee shall determine, in its sole
discretion); and to amend or waive any such terms and conditions to
the extent permitted by Section 11 hereof;
(e) to determine whether and under what circumstances a
Stock Option may be settled in cash or Restricted Stock under Section
5(m) or (n), as applicable, instead of Common Stock;
(f) to determine whether, to what extent, and under what
circumstances Option grants and/or other awards under the Plan are to
be made, and operate, on a tandem basis vis-a-vis other awards under
the Plan and/or cash awards made outside of the Plan;
(g) to determine whether, to what extent, and under what
circumstances shares of Common Stock and other amounts payable with
respect to an award under this Plan shall be deferred either
automatically or at the election of the participant (including
providing for and determining the amount (if any) of any deemed
earnings on any deferred amount during any deferral period);
(h) to determine whether to require payment of tax
withholding requirements in shares of Common Stock subject to the
award; and
(i) to impose any holding period required to satisfy
Section 16 under the Exchange Act.
The Committee shall have the authority to adopt, alter, and repeal
such rules, guidelines, and practices governing the Plan as it shall, from time
to time, deem advisable; to interpret the terms and provisions of the Plan
<PAGE> 5
and any award issued under the Plan (and any agreements relating thereto); and
to otherwise supervise the administration of the Plan.
All decisions made by the Committee pursuant to the provisions of the
Plan shall be subject to ratification by the Board, which shall act only on the
recommendation of the Committee as to all matters as to which the Committee has
discretion pursuant to the provisions of the Plan. Subject to such
ratification, the decisions of the Committee shall be final and binding on all
persons, including the Corporation and Plan participants.
SECTION 3. SHARES OF COMMON STOCK SUBJECT TO PLAN.
(a) The aggregate number of shares of Common Stock that may be
issued under the Plan shall be 1,120,000 shares. The shares of Common Stock
issuable under the Plan may consist, in whole or in part, of authorized and
unissued shares or treasury shares. No officer of the Corporation or other
person whose compensation may be subject to the limitations on deductibility
under Section 162(m) of the Code shall be eligible to receive awards pursuant
to this Plan relating to in excess of 200,000 shares of Common Stock in any
fiscal year (the "Section 162(m) Maximum").
(b) If any shares of Common Stock that have been optioned cease
to be subject to a Stock Option, or if any shares of Common Stock that are
subject to any Restricted Stock or Other Stock-Based Award granted hereunder
are forfeited prior to the payment of any dividends, if applicable, with
respect to such shares of Common Stock, or any such award otherwise terminates
without a payment being made to the participant in the form of Common Stock,
such shares shall again be available for distribution in connection with future
awards under the Plan.
(c) In the event of any merger, reorganization, consolidation,
recapitalization, extraordinary cash dividend, stock dividend, stock split or
other change in corporate structure affecting the Common Stock, an appropriate
substitution or adjustment shall be made in the maximum number of shares that
may be awarded under the Plan, in the number and option price of shares subject
to outstanding Options granted under the Plan, in the number of shares
underlying grants of Restricted Stock and Outside Director Restricted Stock,
the Section 162(m) Maximum and in the number of shares subject to other
outstanding awards granted under the Plan as may be determined to be
appropriate by the Committee, in its sole discretion, provided that the number
of shares subject to any award shall always be a whole number. An adjusted
option price shall also be used to determine the amount payable by the
Corporation upon the exercise of any Stock Appreciation Right associated with
any Stock Option.
SECTION 4. ELIGIBILITY.
Officers, other key employees and Outside Directors of and consultants
to the Corporation and its Subsidiaries and Affiliates who are responsible for
or contribute to the management, growth and/or profitability of the business of
the Corporation and/or its Subsidiaries and Affiliates are eligible to be
granted awards under the Plan. Outside Directors are eligible to receive awards
pursuant to Section 9 and as otherwise determined by the Board.
<PAGE> 6
SECTION 5. STOCK OPTIONS.
Stock Options may be granted alone, in addition to, or in tandem with
other awards granted under the Plan and/or cash awards made outside of the
Plan. Any Stock Option granted under the Plan shall be in such form as the
Committee may from time to time approve.
Stock Options granted under the Plan may be of two types: (i)
Incentive Stock Options and (ii) Non- Qualified Stock Options. Incentive Stock
Options may be granted only to individuals who are employees of the Corporation
or any Subsidiary of the Corporation.
The Committee shall have the authority to grant to any optionee
Incentive Stock Options, Non-Qualified Stock Options, or both types of Stock
Options (in each case with or without Stock Appreciation Rights).
Options granted to officers, key employees, Outside Directors and
consultants under the Plan shall be subject to the following terms and
conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem desirable.
(a) Option Price. The option price per share of
Common Stock purchasable under a Stock Option shall be determined by
the Committee at the time of grant but shall be not less than 100%
(or, in the case of any employee who owns stock possessing more than
10% of the total combined voting power of all classes of stock of the
Corporation or of any of its Subsidiaries, not less than 110%) of the
Fair Market Value of the Common Stock at grant, in the case of
Incentive Stock Options, and not less than 50% of the Fair Market
Value of the Common Stock at grant, in the case of Non-Qualified Stock
Options.
(b) Option Term. The term of each Stock Option
shall be fixed by the Committee, but no Incentive Stock Option shall
be exercisable more than ten years (or, in the case of an employee who
owns stock possessing more than 10% of the total combined voting power
of all classes of stock of the Corporation or any of its Subsidiaries
or parent corporations, more than five years) after the date the
Option is granted.
(c) Exercisability. Stock Options shall be
exercisable at such time or times and subject to such terms and
conditions as shall be determined by the Committee at or after grant;
provided, however, that except as provided in Section 5(g) and (h) and
Section 10, unless otherwise determined by the Committee at or after
grant, no Stock Option shall be exercisable prior to the first
anniversary date of the granting of the Option. The Committee may
provide that a Stock Option shall vest over a period of future service
at a rate specified at the time of grant, or that the Stock Option is
exercisable only in installments. If the Committee provides, in its
sole discretion, that any Stock Option is exercisable only in
installments, the Committee may waive such installment exercise
provisions at any time at or after grant, in whole or in part, based
on such factors as the Committee shall determine in its sole
discretion.
(d) Method of Exercise. Subject to whatever
installment exercise restrictions apply under Section 5(c), Stock
Options may be exercised in whole or in part at any time during the
option period, by giving written notice of exercise to the Corporation
specifying the number of shares to be purchased.
<PAGE> 7
Such notice shall be accompanied by payment in full of the purchase
price, either by check, note, or such other instrument as the
Committee may accept. As determined by the Committee, in its sole
discretion, at or (except in the case of an Incentive Stock Option)
after grant, payment in full or in part may also be made in the form
of shares of Common Stock already owned by the optionee or, in the
case of a NonQualified Stock Option, shares of Restricted Stock or
shares subject to such Option or another award hereunder (in each case
valued at the Fair Market Value of the Common Stock on the date the
Option is exercised). If payment of the exercise price is made in part
or in full with Common Stock, the Committee may award to the employee
a new Stock Option to replace the Common Stock which was surrendered.
If payment of the option exercise price of a Non-Qualified Stock
Option is made in whole or in part in the form of Restricted Stock,
such Restricted Stock (and any replacement shares relating thereto)
shall remain (or be) restricted in accordance with the original terms
of the Restricted Stock award in question, and any additional Common
Stock received upon the exercise shall be subject to the same
forfeiture restrictions, unless otherwise determined by the Committee,
in its sole discretion, at or after grant. No shares of Common Stock
shall be issued until full payment therefor has been made. An optionee
shall generally have the rights to dividends or other rights of a
shareholder with respect to shares subject to the Option when the
optionee has given written notice of exercise, has paid in full for
such shares, and, if requested, has given the representation described
in Section 13(a).
(e) Transferability of Options. No Non-Qualified
Stock Option shall be transferable by the optionee without the prior
written consent of the Committee other than (i) transfers by the
Optionee to a member of his or her Immediate Family or a trust for the
benefit of the optionee or a member of his or her Immediate Family, or
(ii) transfers by will or by the laws of descent and distribution. No
Incentive Stock Option shall be transferable by the optionee otherwise
than by will or by the laws of descent and distribution and all
Incentive Stock Options shall be exercisable, during the optionee's
lifetime, only by the optionee.
(f) Bonus for Taxes. In the case of a
Non-Qualified Stock Option or an optionee who elects to make a
disqualifying disposition (as defined in Section 422(a)(1) of the
Code) of Common Stock acquired pursuant to the exercise of an
Incentive Stock Option, the Committee in its discretion may award at
the time of grant or thereafter the right to receive upon exercise of
such Stock Option a cash bonus calculated to pay part or all of the
federal and state, if any, income tax incurred by the optionee upon
such exercise.
(g) Termination by Death. Subject to Section 5(k),
if an optionee's employment by the Corporation and any Subsidiary or
(except in the case of an Incentive Stock Option) Affiliate terminates
by reason of death, any Stock Option held by such optionee may
thereafter be exercised, to the extent such option was exercisable at
the time of death or (except in the case of an Incentive Stock Option)
on such accelerated basis as the Committee may determine at or after
grant (or except in the case of an Incentive Stock Option, as may be
determined in accordance with procedures established by the Committee)
by the legal representative of the estate or by the legatee of the
optionee under the will of the optionee, for a period of one year (or
such other period as the Committee may specify at or after grant) from
the date of such death or until the expiration of the stated term of
such Stock Option, whichever period is the shorter.
<PAGE> 8
(h) Termination by Reason of Disability. Subject
to Section 5(k), if an optionee's employment by the Corporation and
any Subsidiary or (except in the case of an Incentive Stock Option)
Affiliate terminates by reason of Disability, any Stock Option held by
such optionee may thereafter be exercised by the optionee, to the
extent it was exercisable at the time of termination or (except in the
case of an Incentive Stock Option) on such accelerated basis as the
Committee may determine at or after grant (or, except in the case of
an Incentive Stock Option, as may be determined in accordance with
procedures established by the Committee), for a period of (i) three
years (or such other period as the Committee may specify at or after
grant) from the date of such termination of employment or until the
expiration of the stated term of such Stock Option, whichever period
is the shorter, in the case of a Non-Qualified Stock Option and (ii)
one year from the date of termination of employment or until the
expiration of the stated term of such Stock Option, whichever period
is shorter, in the case of an Incentive Stock Option; provided
however, that, if the optionee dies within the period specified in (i)
above (or other such period as the committee shall specify at or after
grant), any unexercised Non-Qualified Stock Option held by such
optionee shall thereafter be exercisable to the extent to which it was
exercisable at the time of death for a period of twelve months from
the date of such death or until the expiration of the stated term of
such Stock Option, whichever period is shorter. In the event of
termination of employment by reason of Disability, if an Incentive
Stock Option is exercised after the expiration of the exercise period
applicable to Incentive Stock Options, but before the expiration of
any period that would apply if such Stock Option were a Non-Qualified
Stock Option, such Stock Option will thereafter be treated as a
Non-Qualified Stock Option.
(i) Termination by Reason of Retirement. Subject
to Section 5(k), if an optionee's employment by the Corporation and
any Subsidiary or (except in the case of an Incentive Stock Option)
Affiliate terminates by reason of Normal or Early Retirement, any
Stock Option held by such optionee may thereafter be exercised by the
optionee, to the extent it was exercisable at the time of such
Retirement or (except in the case of an Incentive Stock Option) on
such accelerated basis as the Committee may determine at or after
grant (or, except in the case of an Incentive Stock Option, as may be
determined in accordance with procedures established by the
Committee), for a period of (i) three years (or such other period as
the Committee may specify at or after grant) from the date of such
termination of employment or the expiration of the stated term of such
Stock Option, whichever period is the shorter, in the case of a
Non-Qualified Stock Option and (ii) three months from the date of such
termination of employment or the expiration of the stated term of such
Stock Option, whichever period is the shorter, in the event of an
Incentive Stock Option; provided however, that, if the optionee dies
within the period specified in (i) above (or other such period as the
Committee shall specify at or after grant), any unexercised
NonQualified Stock Option held by such optionee shall thereafter be
exercisable to the extent to which it was exercisable at the time of
death for a period of twelve months from the date of such death or
until the expiration of the stated term of such Stock Option,
whichever period is shorter. In the event of termination of employment
by reason of Retirement, if an Incentive Stock Option is exercised
after the expiration of the exercise period applicable to Incentive
Stock Options, but before the expiration of the period that would
apply if such Stock Option were a Non-Qualified Stock Option, the
option will thereafter be treated as a Non-Qualified Stock Option.
<PAGE> 9
(j) Other Termination. Subject to Section 5(k),
unless otherwise determined by the Committee (or pursuant to
procedures established by the Committee) at or (except in the case of
an Incentive Stock Option) after grant, if an optionee's employment by
the Corporation and any Subsidiary or (except in the case of an
Incentive Stock Option) Affiliate is involuntarily terminated for any
reason other than death, Disability or Normal or Early Retirement, the
Stock Option shall thereupon terminate, except that such Stock Option
may be exercised, to the extent otherwise then exercisable, for the
lesser of three months or the balance of such Stock Option's term if
the involuntary termination is without Cause. For purposes of this
Plan, "Cause" means (i) a felony conviction of a participant or the
failure of a participant to contest prosecution for a felony, or (ii)
a participant's willful misconduct or dishonesty, which is directly
and materially harmful to the business or reputation of the
Corporation or any Subsidiary or Affiliate. If an optionee voluntarily
terminates employment with the Corporation and any Subsidiary or
(except in the case of an Incentive Stock Option) Affiliate (except
for Disability, Normal or Early Retirement), the Stock Option shall
thereupon terminate; provided, however, that the Committee at grant or
(except in the case of an Incentive Stock Option) thereafter may
extend the exercise period in this situation for the lesser of three
months or the balance of such Stock Option's term.
(k) Incentive Stock Options. Anything in the Plan
to the contrary notwithstanding, no term of this Plan relating to
Incentive Stock Options shall be interpreted, amended, or altered, nor
shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify the Plan under Section 422 of the Code,
or, without the consent of the optionee(s) affected, to disqualify any
Incentive Stock Option under such Section 422. No Incentive Stock
Option shall be granted to any participant under the Plan if such
grant would cause the aggregate Fair Market Value (as of the date the
Incentive Stock Option is granted) of the Common Stock with respect to
which all 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) to exceed $100,000. To the extent
permitted under Section 422 of the Code or the applicable regulations
thereunder or any applicable Internal Revenue Service pronouncement:
(i) if (x) a participant's employment is
terminated by reason of death, Disability, or Retirement and
(y) the portion of any Incentive Stock Option that is
otherwise exercisable during the post-termination period
specified under Section 5(g), (h) or (i), applied without
regard to the $100,000 limitation contained in Section 422(d)
of the Code, is greater than the portion of such Option that
is immediately exercisable as an "Incentive Stock Option"
during such post- termination period under Section 422, such
excess shall be treated as a Non-Qualified Stock Option; and
(ii) if the exercise of an Incentive Stock Option
is accelerated by reason of a Change in Control, any portion
of such Option that is not exercisable as an Incentive Stock
Option by reason of the $100,000 limitation contained in
Section 422(d) of the Code shall be treated as a Non-Qualified
Stock Option.
<PAGE> 10
(l) Buyout Provisions. The Committee may at any
time offer to buy out for a payment in cash, Common Stock, or
Restricted Stock an Option previously granted, based on such terms and
conditions as the Committee shall establish and communicate to the
optionee at the time that such offer is made.
(m) Settlement Provisions. If the option agreement
so provides at grant or (except in the case of an Incentive Stock
Option) is amended after grant and prior to exercise to so provide
(with the optionee's consent), the Committee may require that all or
part of the shares to be issued with respect to the spread value of an
exercised Option take the form of Restricted Stock, which shall be
valued on the date of exercise on the basis of the Fair Market Value
(as determined by the Committee) of such Restricted Stock determined
without regards to the forfeiture restrictions involved.
(n) Performance and Other Conditions. The Committee may
condition the exercise of any Option upon the attainment of specified
performance goals or other factors as the Committee may determine, in
its sole discretion. Unless specifically provided in the option
agreement, any such conditional Option shall vest immediately prior to
its expiration if the conditions to exercise have not theretofore been
satisfied.
SECTION 6. STOCK APPRECIATION RIGHTS.
(a) Grant and Exercise. Stock Appreciation Rights
may be granted in conjunction with all or part of any Stock Option
granted under the Plan. In the case of a Non-Qualified Stock Option,
such rights may be granted either at or after the time of the grant of
such Stock Option. In the case of an Incentive Stock Option, such
rights may be granted only at the time of the grant of such Stock
Option. A Stock Appreciation Right or applicable portion thereof
granted with respect to a given Stock Option shall terminate and no
longer be exercisable upon the termination or exercise of the related
Stock Option, subject to such provisions as the Committee may specify
at grant where a Stock Appreciation Right is granted with respect to
less than the full number of shares covered by a related Stock Option.
A Stock Appreciation Right may be exercised by an optionee, subject to
Section 6(b), in accordance with the procedures established by the
Committee for such purpose. Upon such exercise, the optionee shall be
entitled to receive an amount determined in the manner prescribed in
Section 6(b). Stock Options relating to exercised Stock Appreciation
Rights shall no longer be exercisable to the extent that the related
Stock Appreciation Rights have been exercised.
(b) Terms and Conditions. Stock Appreciation
Rights shall be subject to such terms and conditions, not inconsistent
with the provisions of the Plan, as shall be determined from time to
time by the Committee, including the following:
(i) Stock Appreciation Rights shall be
exercisable only at such time or times and to the extent that
the Stock Options to which they relate shall be exercisable in
accordance with the provisions of Section 5 and this Section 6
of the Plan.
(ii) Upon the exercise of a Stock Appreciation
Right, an optionee shall be entitled to receive an amount in
cash and/or shares of Common Stock equal in value to the
excess of the Fair
<PAGE> 11
Market Value of one share of Common Stock over the option
price per share specified in the related Stock Option
multiplied by the number of shares in respect of which the
Stock Appreciation Right shall have been exercised, with the
Committee having the right to determine the form of payment.
When payment is to be made in shares, the number of shares to
be paid shall be calculated on the basis of the Fair Market
Value of the shares on the date of exercise. When payment is
to be made in cash, such amount shall be calculated on the
basis of the Fair Market Value of the Common Stock on the
date of exercise.
(iii) Stock Appreciation Rights shall be
transferable only when and to the extent that the underlying
Stock Option would be transferable under Section 5(e) of the
Plan.
(iv) Upon the exercise of a Stock Appreciation
Right, the Stock Option or part thereof to which such Stock
Appreciation Right is related shall be deemed to have been
exercised for the purpose of the limitation set forth in
Section 3 of the Plan on the number of shares of Common Stock
to be issued under the Plan.
(v) The Committee, in its sole discretion, may
also provide that, in the event of a Change in Control and/or
a Potential Change in Control, the amount to be paid upon the
exercise of a Stock Appreciation Right shall be based on the
Change in Control Price, subject to such terms and conditions
as the Committee may specify at grant.
(vi) The Committee may condition the exercise of
any Stock Appreciation Right upon the attainment of specified
performance goals or other factors as the Committee may
determine, in its sole discretion.
SECTION 7. RESTRICTED STOCK.
(a) Administration. Shares of Restricted Stock may
be issued either alone, in addition to, or in tandem with other awards
granted under the Plan and/or cash awards made outside the Plan. The
Committee shall determine the eligible persons to whom, and the time
or times at which, grants of Restricted Stock will be made, the number
of shares of Restricted Stock to be awarded to any person, the price
(if any) to be paid by the recipient of Restricted Stock (subject to
Section 7(b)), the time or times within which such awards may be
subject to forfeiture, and the other terms, restrictions and
conditions of the awards in addition to those set forth in Section
7(c). The Committee may condition the grant of Restricted Stock upon
the attainment of specified performance goals or such other factors as
the Committee may determine, in its sole discretion. The provisions of
Restricted Stock awards need not be the same with respect to each
recipient.
(b) Awards and Certificates. The prospective recipient of
a Restricted Stock award shall not have any rights with respect to such
award, unless and until such recipient has executed an agreement
evidencing the award and has delivered a fully executed copy thereof to
the Corporation, and has otherwise complied with the applicable terms
and conditions of such award.
<PAGE> 12
(i) The purchase price for shares of Restricted
Stock shall be established by the Committee and may be zero.
(ii) Awards of Restricted Stock must be accepted
within a period of 60 days (or such shorter period as the
Committee may specify at grant) after the award date, by
executing a Restricted Stock Award Agreement and paying
whatever price (if any) is required under Section 7(b)(i).
(iii) Each participant receiving a Restricted
Stock award shall be issued a stock certificate in respect of
such shares of Restricted Stock. Such certificate shall be
registered in the name of such participant, and shall bear an
appropriate legend referring to the terms, conditions, and
restrictions applicable to such award.
(iv) The Committee shall require that the stock
certificates evidencing such shares be held in custody by the
Corporation until the restrictions thereon shall have lapsed,
and that, as a condition of any Restricted Stock award, the
participant shall have delivered a stock power, endorsed in
blank, relating to the shares of Common Stock covered by such
award.
(c) Restrictions and Conditions. The shares of Restricted
Stock awarded pursuant to this Section 7 shall be subject to the
following restrictions and conditions:
(i) In accordance with the provisions of this
Plan and the award agreement, during a period set by the
Committee commencing with the date of such award (the
"Restriction Period"), the participant shall not be permitted
to sell, transfer, pledge, assign, or otherwise encumber
shares of Restricted Stock awarded under the Plan, except to
the extent permitted under Section 13(h) below. Within these
limits, the Committee, in its sole discretion, may provide for
the lapse of such restrictions in installments and may
accelerate or waive such restrictions, in whole or in part,
based on service, performance, such other factors or criteria
as the Committee may determine in its sole discretion.
(ii) Except as provided in this paragraph (ii)
and Section 7(c)(i), the participant shall have, with respect
to the shares of Restricted Stock, all of the rights of a
shareholder of the Corporation, including the right to vote
the shares, and the right to receive any cash dividends. The
Committee, in its sole discretion, as determined at the time
of award, may permit or require the payment of cash dividends
to be deferred and, if the Committee so determines,
reinvested, subject to Section 14(e), in additional Restricted
Stock to the extent shares are available under Section 3, or
otherwise reinvested. Pursuant to Section 3 above, stock
dividends issued with respect to Restricted Stock shall be
treated as additional shares of Restricted Stock that are
subject to the same restrictions and other terms and
conditions that apply to the shares with respect to which such
dividends are issued. If the Committee so determines, the
award agreement may also impose restrictions on the right to
vote and the right to receive dividends.
<PAGE> 13
(iii) Subject to the applicable provisions of the
award agreement and this Section 7, upon termination of a
participant's employment with the Corporation and any
Subsidiary or Affiliate for any reason during the Restriction
Period, all shares still subject to restriction will vest, or
be forfeited, in accordance with the terms and conditions
established by the Committee at or after grant.
(iv) If and when the Restriction Period expires
without a prior forfeiture of the Restricted Stock subject to
such Restriction Period, certificates for an appropriate
number of unrestricted shares shall be delivered to the
participant promptly.
(d) Minimum Value Provisions. In order to better
ensure that award payments actually reflect the performance of the
Corporation and service of the participant, the Committee may provide,
in its sole discretion, for a tandem performance-based or other award
designed to guarantee a minimum value, payable in cash or Common Stock
to the recipient of a restricted stock award, subject to such
performance, future service, deferral, and other terms and conditions
as may be specified by the Committee.
SECTION 8. OTHER STOCK-BASED AWARDS.
(a) Administration. Other Stock-Based Awards,
including, without limitation, performance shares, convertible
preferred stock, convertible debentures, exchangeable securities and
Common Stock awards or options valued by reference to earnings per
share or Subsidiary performance, may be granted either alone, in
addition to, or in tandem with Stock Options, Stock Appreciation
Rights, or Restricted Stock granted under the Plan and cash awards
made outside of the Plan; provided that no such Other Stock-Based
Awards may be granted in tandem with Incentive Stock Options if that
would cause such Stock Options not to qualify as Incentive Stock
Options pursuant to Section 422 of the Code. Subject to the provisions
of the Plan, the Committee shall have authority to determine the
persons to whom and the time or times at which such awards shall be
made, the number of shares of Common Stock to be awarded pursuant to
such awards, and all other conditions of the awards. The Committee may
also provide for the grant of Common Stock upon the completion of a
specified performance period. The provisions of Other Stock-Based
Awards need not be the same with respect to each recipient.
(b) Terms and Conditions. Other Stock-Based Awards
made pursuant to this Section 8 shall be subject to the following
terms and conditions:
(i) Shares subject to awards under this Section
8 and the award agreement referred to in Section 8(b)(v)
below, may not be sold, assigned, transferred, pledged, or
otherwise encumbered prior to the date on which the shares are
issued, or, if later, the date on which any applicable
restriction, performance, or deferral period lapses.
(ii) Subject to the provisions of this Plan and
the award agreement and unless otherwise determined by the
Committee at grant, the recipient of an award under this
Section 8 shall be entitled to receive, currently or on a
deferred basis, interest or dividends or interest or dividend
<PAGE> 14
equivalents with respect to the number of shares covered by
the award, as determined at the time of the award by the
Committee, in its sole discretion, and the Committee may
provide that such amounts (if any) shall be deemed to have
been reinvested in additional shares of Common Stock or
otherwise reinvested.
(iii) Any award under Section 8 and any shares of
Common Stock covered by any such award shall vest or be
forfeited to the extent so provided in the award agreement, as
determined by the Committee in its sole discretion.
(iv) In the event of the
participant's Retirement, Disability, or death, or in cases
of special circumstances, the Committee may, in its sole
discretion, waive in whole or in part any or all of the
remaining limitations imposed hereunder (if any) with respect
to any or all of an award under this Section 8.
(v) Each award under this Section 8
shall be confirmed by, and subject to the terms of, an
agreement or other instrument by the Corporation and the
participant.
(vi) Common Stock (including securities
convertible into Common Stock) issued on a bonus basis under
this Section 8 may be issued for no cash consideration. Common
Stock (including securities convertible into Common Stock)
purchased pursuant to a purchase right awarded under this
Section 8 shall be priced at least 85% of the Fair Market
Value of the Common Stock on the date of grant.
SECTION 9. AWARDS TO OUTSIDE DIRECTORS.
(a) The provisions of this Section 9 shall apply
only to awards to Outside Directors in accordance with this Section 9.
The Committee shall have no authority to determine the timing of or
the terms or conditions of any award under this Section 9.
(b) Effective as of the Distribution, each person
serving as an Outside Director on such date will receive a grant of a
number of shares of Common Stock (rounded up to the next whole share)
having an aggregate Fair Market Value on such date equal to $10,000,
which shares shall be restricted as provided in this Section 9.
(c) On the date of the Annual Meeting of Shareholders of
the Corporation occurring after the Distribution, unless this Plan has
been previously terminated, each Outside Director will receive an
automatic grant of a number of shares of Common Stock (rounded up to
the next whole share) having an aggregate Fair Market Value on such
date equal to $10,000 (subject to increase based upon any increase in
the Consumer Price Index for Urban Wage Earning and Clerical Workers,
U.S. All City Average Report, of the U.S. Bureau of Labor Statistics
or, if such index is no longer available, a similar index), which
shares shall be restricted as provided in this Section 9.
<PAGE> 15
(d) Each grant of Outside Director Restricted Stock shall
vest in increments of one-third of the shares of Common Stock subject
to such grant with the first one-third increment vesting on the date of
grant, the second one-third increment on the first anniversary of the
date of grant and the final one-third increment on the second
anniversary of the date of grant, if the grantee is still a member of
the Board on such dates. Upon the vesting of the shares, the
Corporation will deliver the stock certificate(s) evidencing the
vested shares to the Outside Director, all restrictions on the shares
imposed by this Plan (other than pursuant to Section 13(a) below) will
be lifted and such shares will no longer be deemed to be "Outside
Directors Restricted Stock" hereunder.
(e) Until the earlier of (i) five years from the
date of grant and (ii) the date on which the Outside Director ceases
to serve as a director of the Corporation (the "Outside Director
Period of Restriction"), no Outside Director Restricted Stock may be
sold, transferred, pledged, assigned, or otherwise alienated or
hypothecated, otherwise than by will or by the laws of descent and
distribution.
Each certificate representing Outside Director Restricted Stock
granted pursuant to this Section 9 shall bear the following legend:
"The sale or other transfer of the shares represented by this
certificate, whether voluntary, involuntary, or by operation
of law, is subject to certain restrictions on transfer set
forth in the AmSurg Corp. 1997 Stock Incentive Plan (the
"Plan"). A copy of the Plan and the rules of such Plan may be
obtained from the Secretary of AmSurg Corp."
Once the Outside Director Period of Restriction has lapsed, the
grantee shall be entitled to have the legend required by this Section
9 removed from such stock certificate(s); provided however, that such
certificate shall be subject to any legend required by applicable
state or federal law.
(f) Upon termination of an Outside Director's service as
a member of the Board for any reason other than death, disability or
retirement, all shares of Outside Restricted Stock not theretofore
vested will be forfeited. Upon termination of an Outside Director's
service as a member of the Board due to death, disability or
retirement, all shares of Outside Director Restricted Stock will vest
immediately.
(g) Grantees of Outside Director Restricted Stock
shall enter into a restricted stock agreement with the Corporation
setting forth the terms provided herein. Each participant receiving an
award of Outside Director Restricted Stock shall be issued one or more
stock certificates evidencing the shares of Outside Director
Restricted Stock. Such certificates shall be registered in the name of
the Outside Director, and shall bear an appropriate legend referring
to the terms, conditions and restrictions applicable to the award. The
stock certificates shall be held in the custody of the Corporation
until the award or portion thereof represented by such certificate is
vested. The Corporation may require the Outside Director to deliver a
stock power, endorsed in blank, relating to the shares of Common Stock
covered by the award.
<PAGE> 16
(h) Outside Directors will have the right to vote
the shares and to receive cash dividends with respect to the shares of
Outside Director Restricted Stock. Stock dividends issued with respect
to Outside Director Restricted Stock will be treated as additional
shares of Outside Director Restricted Stock subject to the same
restrictions and vesting schedule as the shares of Outside Director
Restricted Stock with respect to which they were received.
(i) Shares of Outside Director Restricted Stock
shall be subject to Section 10. The number of shares underlying each
grant of Outside Director Restricted Stock shall be adjusted
automatically in the same manner as the number of shares under Section
3 hereof at any time that awards of Restricted Stock are adjusted as
provided in Section 3.
SECTION 10. CHANGE IN CONTROL PROVISIONS.
(a) Impact of Event. In the event of:
(1) a "Change in Control" as defined in Section
10(b); or
(2) a "Potential Change in Control" as defined
in Section 10(c), but only if and to the extent so determined
by the Committee or the Board at or after grant (subject to
any right of approval expressly reserved by the Committee or
the Board at the time of such determination),
(i) Subject to the limitations set forth below
in this Section 10(a), the following acceleration provisions
shall apply:
(a) Any Stock Appreciation Rights or
any Stock Option awarded under the Plan not
previously exercisable and vested shall become fully
exercisable and vested.
(b) The restrictions applicable to any
Restricted Stock , Outside Director Restricted Stock
and Other Stock-Based Awards, in each case to the
extent not already vested under the Plan, shall lapse
and such shares and awards shall be deemed fully
vested.
(ii) Subject to the limitations set forth below
in this Section 10(a), the value of all outstanding Stock
Options, Stock Appreciation Rights, Restricted Stock, Outside
Director Restricted Stock and Other Stock-Based Awards, in
each case to the extent vested, shall, unless otherwise
determined Board or by the Committee in its sole discretion
prior to any Change in Control, be cashed out on the basis of
the "Change in Control Price" as defined in Section 10(d) as
of the date such Change in Control or such Potential Change in
Control is determined to have occurred or such other date as
the Board or Committee may determine prior to the Change in
Control.
(iii) The Board or the Committee may impose
additional conditions on the acceleration or valuation of any
award in the award agreement.
<PAGE> 17
(b) Definition of Change in Control. For purposes
of Section 10(a), a "Change in Control" means the happening of any of
the following:
(i) any person or entity, including a "group" as
defined in Section 13(d)(3) of the Exchange Act, other than
the Corporation or a wholly-owned subsidiary thereof or any
employee benefit plan of the Corporation or any of its
Subsidiaries, becomes the beneficial owner of the
Corporation's securities having 35% or more of the combined
voting power of the then outstanding securities of the
Corporation that may be cast for the election of directors of
the Corporation (other than as a result of an issuance of
securities initiated by the Corporation in the ordinary
course of business); or
(ii) as the result of, or in connection with, any
cash tender or exchange offer, merger or other business
combination, sales of assets or contested election, or any
combination of the foregoing transactions, less than a
majority of the combined voting power of the then outstanding
securities of the Corporation or any successor corporation or
entity entitled to vote generally in the election of the
directors of the Corporation or such other corporation or
entity after such transaction are held in the aggregate by the
holders of the Corporation's securities entitled to vote
generally in the election of directors of the Corporation
immediately prior to such transaction; or
(iii) during any period of two consecutive years,
individuals who at the beginning of any such period constitute
the Board cease for any reason to constitute at least a
majority thereof, unless the election, or the nomination for
election by the Corporation's shareholders, of each director
of the Corporation first elected during such period was
approved by a vote of at least two-thirds of the directors of
the Corporation then still in office who were directors of the
Corporation at the beginning of any such period.
(c) Definition of Potential Change in Control. For
purposes of Section 10(a), a "Potential Change in Control" means the
happening of any one of the following:
(i) The approval by shareholders of an agreement
by the Corporation, the consummation of which would result in
a Change in Control of the Corporation as defined in Section
10(b); or
(ii) The acquisition of beneficial ownership,
directly or indirectly, by any entity, person or group (other
than the Corporation or a Subsidiary or any Corporation
employee benefit plan (including any trustee of such plan
acting as such trustee)) of securities of the Corporation
representing 5% or more of the combined voting power of the
Corporation's outstanding securities and the adoption by the
Committee of a resolution to the effect that a Potential
Change in Control of the Corporation has occurred for purposes
of this Plan.
(d) Change in Control Price. For purposes of this
Section 10, "Change in Control Price" means the highest price per
share paid in any transaction reported on The Nasdaq Stock Market
National Market or such other exchange or market as is the principal
trading market for the Common Stock, or
<PAGE> 18
paid or offered in any bona fide transaction related to a Potential or
actual Change in Control of the Corporation at any time during the 60
day period immediately preceding the occurrence of the Change in
Control (or, where applicable, the occurrence of the Potential Change
in Control event), in each case as determined by the Committee except
that, in the case of Incentive Stock Options and Stock Appreciation
Rights relating to Incentive Stock Options, such price shall be based
only on transactions reported for the date on which the optionee
exercises such Stock Appreciation Rights or, where applicable, the
date on which a cash out occurs under Section 10(a)(ii).
SECTION 11. AMENDMENTS AND TERMINATION.
The Board may at any time amend, alter or discontinue the Plan;
provided, however, that, without the approval of the Corporation's
shareholders, no amendment or alteration may be made which would (a) except as
a result of the provisions of Section 3(c) of the Plan, increase the maximum
number of shares that may be issued under the Plan or increase the Section
162(m) Maximum, (b) change the provisions governing Incentive Stock Options
except as required or permitted under the provisions governing incentive stock
options under the Code, or (c) make any change for which applicable law or
regulatory authority (including the regulatory authority of The Nasdaq Stock
Market National Market or any other market or exchange on which the Common
Stock is traded) would require shareholder approval or for which shareholder
approval would be required to secure full deductibility of compensation
received under the Plan under Section 162(m) of the Code. No amendment,
alteration, or discontinuation shall be made which would impair the rights of
an optionee or participant under a Stock Option, Stock Appreciation Right,
Restricted Stock, Other Stock-Based Award or Outside Director Restricted Stock
theretofore granted, without the participant's consent.
The Committee may amend the terms of any Stock Option or other award
theretofore granted, prospectively or retroactively, but, subject to Section 3
above, no such amendment shall impair the rights of any holder without the
holder's consent. The Committee may also substitute new Stock Options for
previously granted Stock Options (on a one for one or other basis), including
previously granted Stock Options having higher option exercise prices. Solely
for purposes of computing the Section 162(m) Maximum, if any Stock Options or
other awards previously granted to a participant are canceled and new Stock
Options or other awards having a lower exercise price or other more favorable
terms for the participant are substituted in their place, both the initial
Stock Options or other awards and the replacement Stock Options or other awards
will be deemed to be outstanding (although the canceled Stock Options or other
awards will not be exercisable or deemed outstanding for any other purposes).
SECTION 12. UNFUNDED STATUS OF PLAN.
The Plan is intended to constitute an "unfunded" plan for incentive
and deferred compensation. With respect to any payments not yet made to a
participant or optionee by the Corporation, nothing contained herein shall give
any such participant or optionee any rights that are greater than those of a
general creditor of the Corporation. In its sole discretion, the Committee may
authorize the creation of trusts or other arrangements to meet the obligations
created under the Plan to deliver Common Stock or payments in lieu of or with
respect to awards hereunder; provided, however, that, unless the Committee
otherwise determines with the consent of the
<PAGE> 19
affected participant, the existence of such trusts or other arrangements is
consistent with the "unfunded" status of the Plan.
SECTION 13. GENERAL PROVISIONS.
(a) The Committee may require each person purchasing
shares pursuant to a Stock Option or other award under the Plan to
represent to and agree with the Corporation in writing that the
optionee or participant is acquiring the shares without a view to
distribution thereof. The certificates for such shares may include
any legend which the Committee deems appropriate to reflect any
restrictions on transfer. All certificates for shares of Common Stock
or other securities delivered under the Plan shall be subject to such
stock-transfer orders and other restrictions as the Committee may deem
advisable under the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which the
Common Stock is then listed, and any applicable Federal or state
securities law, and the Committee may cause a legend or legends to be
put on any such certificates to make appropriate reference to such
restrictions.
(b) Nothing contained in this Plan shall prevent
the Board from adopting other or additional compensation arrangements,
subject to shareholder approval if such approval is required; and such
arrangements may be either generally applicable or applicable only in
specific cases.
(c) The adoption of the Plan shall not confer upon
any employee of the Corporation or any Subsidiary or Affiliate any
right to continued employment with the Corporation or a Subsidiary or
Affiliate, as the case may be, nor shall it interfere in any way with
the right of the Corporation or a Subsidiary or Affiliate to terminate
the employment of any of its employees at any time.
(d) No later than the date as of which an amount
first becomes includible in the gross income of the participant for
Federal income tax purposes with respect to any award under the Plan,
the participant shall pay to the Corporation, or make arrangements
satisfactory to the Committee regarding the payment of, any Federal,
state, or local taxes of any kind required by law to be withheld with
respect to such amount. The Committee may require withholding
obligations to be settled with Common Stock, including Common Stock
that is part of the award that gives rise to the withholding
requirement. The obligations of the Corporation under the Plan shall
be conditional on such payment or arrangements and the Corporation and
its Subsidiaries or Affiliates shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind
otherwise due to the participant.
(e) The actual or deemed reinvestment of dividends
or dividend equivalents in additional Restricted Stock (or other types
of Plan awards) at the time of any dividend payment shall only be
permissible if sufficient shares of Common Stock are available under
Section 3 for such reinvestment (taking into account then outstanding
Stock Options and other Plan awards).
(f) The Plan and all awards made and actions taken
thereunder shall be governed by and construed in accordance with the
laws of the State of Tennessee.
<PAGE> 20
(g) The members of the Committee and the Board shall not
be liable to any employee or other person with respect to any
determination made hereunder in a manner that is not inconsistent with
their legal obligations as members of the Board. 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 Corporation 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
Corporation) 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 Corporation the opportunity, at its
own expense, to handle and defend the same.
(h) In addition to any other restrictions on transfer
that may be applicable under the terms of this Plan or the applicable
award agreement, no Stock Option, Stock Appreciation Right, Restricted
Stock award, Other Stock-Based Award or Outside Director Restricted
Stock award or other right issued under this Plan is transferable by
the participant without the prior written consent of the Committee, or,
in the case of an Outside Director, the Board, other than (i) transfers
by a participant to a member of his or her Immediate Family or a trust
for the benefit of the participant or a member of his or her Immediate
Family or (ii) transfers by will or by the laws of descent and
distribution. The designation of a beneficiary will not constitute a
transfer.
(i) The Committee may, at or after grant, condition the
receipt of any payment in respect of any award or the transfer of any
shares subject to an award on the satisfaction of a six-month holding
period, if such holding period is required for compliance with Section
16 under the Exchange Act.
SECTION 14. EFFECTIVE DATE OF PLAN.
The Plan shall be effective upon adoption by the Board (the "Effective
Date"), subject to approval by the holders of a majority of the votes of the
Corporation's capital stock.
SECTION 15. TERM OF PLAN.
No Stock Option, Stock Appreciation Right, Restricted Stock award,
Other Stock-Based Award or award of Outside Director Restricted Stock award
shall be granted pursuant to the Plan on or after the tenth anniversary of the
Effective Date of the Plan, but awards granted prior to such tenth anniversary
may be extended beyond that date.
<PAGE> 1
EXHIBIT 5.1
BASS, BERRY & SIMS PLC
A PROFESSIONAL LIMITED LIABILITY COMPANY
ATTORNEYS AT LAW
315 DEADERICK STREET, SUITE 2700
NASHVILLE, TENNESSEE 37238-0002
(615) 742-6200
KNOXVILLE OFFICE: MEMPHIS OFFICE:
900 SOUTH GAY STREET, SUITE 1700 THE TOWER AT PEABODY PLACE
KNOXVILLE, TN 37902 100 PEABODY PLACE, SUITE 950
(423) 521-6200 MEMPHIS, TN 38103-2625
(901) 543-5900
March 30, 2000
AmSurg Corp.
20 Burton Hills Boulevard
Nashville, Tennessee 37215
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as your counsel in the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") relating to
the Company's 1997 Stock Incentive Plan, as amended (the "Plan") filed by you
with the Securities and Exchange Commission covering an aggregate of 470,000
shares (the "Shares") of common stock, no par value, issuable pursuant to the
Plan.
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 Plan, will be validly
issued, fully paid, and non-assessable.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ Bass, Berry & Sims PLC
<PAGE> 1
EXHIBIT 23.1
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement of
AmSurg Corp. on Form S-8 of our report dated February 15, 1999, appearing in
the Annual Report on Form 10-K of AmSurg Corp. for the year ended December 31,
1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Nashville, Tennessee
March 30, 2000
