<PAGE>
As filed with the Securities and Exchange Commission on June 25, 1997.
REGISTRATION NO. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
AMERICAN ONCOLOGY RESOURCES, INC.
(Exact name of Registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 16825 Northchase Drive, Suite 1300 84-1213501
(State or other jurisdiction Houston, Texas 77060 (I.R.S. Employer
of incorporation or organization) (Address of principal executive offices) Identification No.)
(Zip Code)
</TABLE>
_______________________
AMERICAN ONCOLOGY RESOURCES, INC.
1993 KEY EMPLOYEE
STOCK OPTION PLAN
(Full title of the plan)
_______________________
L. Fred Pounds
Vice President of Finance
American Oncology Resources, Inc.
16825 Northchase Drive, Suite 1300
Houston, Texas 77060
(Name and address of agent for service)
_______________________
(281) 873-2674
(Telephone number, including area code, of agent for service)
_______________________
Copy to:
Diana M. Hudson
Mayor, Day, Caldwell & Keeton, L.L.P.
700 Louisiana, Suite 1900
Houston, Texas 77002
(713) 225-7000
_______________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
TITLE OF AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE(1) OFFERING PRICE(1) FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 988,193 $14.125 $13,958,226 $4,229
share
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
<PAGE>
INCORPORATION OF CONTENTS OF EARLIER REGISTRATION STATEMENT BY REFERENCE
The contents of an earlier registration statement, file number 333-786 (the
"Earlier Registration Statement"), are incorporated by reference and made a part
hereof.
1
<PAGE>
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 HOUSTON, STATE OF TEXAS, ON JUNE 20, 1997.
AMERICAN ONCOLOGY RESOURCES, INC.
By: /s/ L. FRED POUNDS
---------------------------------------
L. Fred Pounds
Vice President of Finance and Treasurer
POWER OF ATTORNEY
Each of the undersigned directors and officers of American Oncology
Resources, Inc. does hereby constitute and appoint L. Fred Pounds as the
undersigned's true and lawful attorney-in-fact and agent to do any and all acts
and things in the undersigned's name and behalf in the undersigned's capacities
as director and/or officer, and to execute any and all instruments for the
undersigned and in the undersigned's name in the capacities indicated below
which such person or persons may deem necessary or advisable to enable American
Oncology Resources, Inc. to comply with the Securities Act of 1933, as amended,
and any rules, regulations and requirements of the Securities and Exchange
Commission in connection with this Registration Statement, including
specifically, but not limited to, power and authority to sign for the
undersigned in the capacities indicated below any and all amendments (including
post-effective amendments) hereto, and the undersigned does hereby ratify and
confirm all that such person or persons shall 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.
Signature Title Date
--------- ----- ----
/s/ R. DALE ROSS Chairman of the Board, June 20, 1997
- ------------------------------- Chief Executive
R. Dale Ross Officer and Director
/s/ LLOYD K. EVERSON, M.D. President and Director June 20, 1997
- -------------------------------
Lloyd K. Everson, M.D.
/s/ L. FRED POUNDS Vice President of Finance, June 20, 1997
- ------------------------------- Chief Financial Officer
L. Fred Pounds and Treasurer
/s/ RUSSELL L. CARSON Director June 20, 1997
- -------------------------------
Russell L. Carson
/s/ KYLE M. FINK, M.D. Director June 20, 1997
- -------------------------------
Kyle M. Fink, M.D.
<PAGE>
Signature Title Date
--------- ----- ----
/s/ RICHARD B. MAYOR Director June 20, 1997
- -------------------------------
Richard B. Mayor
/s/ MARGARAL S. MURALI, M.D. Director June 20, 1997
- -------------------------------
Margaral S. Murali, M.D.
/s/ ROBERT A. ORTENZIO Director June 20, 1997
- -------------------------------
Robert A. Ortenzio
/s/ ANDREW M. PAUL Director June 20, 1997
- -------------------------------
Andrew M. Paul
/s/ LEONARD M. RIGGS, JR., M.D. Director June 20, 1997
- -------------------------------
Leonard M. Riggs, Jr., M.D.
/s/ EDWARD E. ROGOFF, M.D. Director June 20, 1997
- -------------------------------
Edward E. Rogoff, M.D.
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
4.1 Certificate of Incorporation of the Registrant.
4.2 Bylaws of the Registrant - incorporated by reference to
Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q
with respect to the Quarterly Period ended March 31, 1997.
4.3 American Oncology Resources, Inc., 1993 Key Employee Stock
Option Plan, as amended.
5 Opinion of Mayor, Day, Caldwell & Keeton, L.L.P.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Mayor, Day, Caldwell & Keeton, L.L.P. (included in
Exhibit 5).
24 Powers of Attorney (included on signature page of this
Registration Statement).
<PAGE>
EXHIBIT 4.1
Page 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "ASCEND MEDICAL CORP.", FILED IN THIS OFFICE ON THE THIRTIETH
DAY OF OCTOBER, A.D. 1992, AT 4:01 O'CLOCK P.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edware J. Freel, Secretary of State
AUTHENTICATION: 8504081
DATE: 06-10-97
<PAGE>
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 04:01 PM 10/30/1992
722304186 - 2314505
CERTIFICATE OF INCORPORATION
OF
ASCEND MEDICAL CORP.
THE UNDERSIGNED, for the purpose of forming a corporation pursuant to the
provisions of the General Corporation Law of Delaware, does hereby certify as
follows:
FIRST: The name of the Corporation is Ascend Medical Corp.
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, New Castle County. The name of the
Corporation's registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is two million (2,000,000) shares, divided into two
classes consisting of one million (1,000,000) Preferred Shares; and the other
class consisting of one million (1,000,000) Common Shares, each of which shall
have the par value of $.01 per share.
The Board of Directors of the Corporation shall have the power by
resolution to (a) provide for the issuance of shares of preferred stock in
series, (b) determine the number of shares of such stock in any such series, and
(c) fix the designations,
<PAGE>
preferences, qualifications, limitations, restrictions and special or relative
rights of shares of preferred stock or any series thereof.
FIFTH: The name and mailing address of the incorporator is as follows:
Name Mailing Address
---- ---------------
Kyle M. Fink, M.D. c/o HOA
2005 Franklin Street
Suite 150
Denver, Colorado 80205
SIXTH: In furtherance and not in limitation of the general powers
conferred by the laws of the State of Delaware, the Board of Directors is
expressly authorized to make, alter or repeal the Bylaws of the Corporation,
except as specifically otherwise provided therein.
SEVENTH: A director of the Corporation shall have no personal liability to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director except to the extent that Section 102(b)(7) (or any successor
provision) of the Delaware General Corporation Law, as amended from time to
time, expressly provides that the liability of a director may not be eliminated
or limited.
EIGHTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on
-2-
<PAGE>
the application of any receiver or receivers appointed for this Corporation
under the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 279 of Title 8 of the
Delaware Code, order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all the
stockholders or class of stockholders of this Corporation, as the case may be,
and also on this Corporation.
NINTH: The term of existence of the Corporation shall be perpetual.
TENTH: Any director or the entire Board of Directors may be removed, with
or without cause, by the holders of a
-3-
<PAGE>
majority of the shares entitled to vote at an election of directors.
IN WITNESS WHEREOF, the undersigned, being the incorporator hereinabove
named, does hereby execute this Certificate of Incorporation this 30th day of
October, 1992.
/s/ KYLE M. FINK, M.D.
--------------------------------
Kyle M. Fink, M.D., Incorporator
-4-
<PAGE>
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
AMENDMENT OF "ASCEND MEDICAL CORP.", CHANGING ITS NAME FROM "ASCEND MEDICAL
CORP." TO "AMERICAN ONCOLOGY RESOURCES, INC.", FILED IN THIS OFFICE ON THE
TWELFTH DAY OF NOVEMBER, A.D. 1992, AT 10 O'CLOCK A.M.
/s/ EDWARD J. FREEL
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8504080
DATE: 06-10-97
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 10:00 AM 11/12/1992
722317047 - 2314505
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ASCEND MEDICAL CORP.
Ascend Medical Corp., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
FIRST: That the Sole Director of the corporation, by written consent,
filed with the minutes of the Board, adopted a resolution proposing and
declaring advisable the following amendment to the Certificate of Incorporation
of the corporation:
RESOLVED, that the amendment of Article FIRST of the Corporation's
Certificate of Incorporation to read in its entirety as follows (the
"Amendment") is hereby proposed and declared to be advisable and in the
best interests of the Corporation:
"FIRST, the name of the corporation is AMERICAN ONCOLOGY
RESOURCES, INC."
SECOND: That the sole stockholder has given a written consent to said
amendment in accordance with the provisions of Section 228 of the General
Corporation Law of the State of Delaware.
THIRD: That the amendment has been duly adopted in accordance with the
provisions of Section 242 and 228 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the corporation has caused its corporate seal to be
hereunto affixed and this certificate to be signed by its President and attested
by its Secretary, this 10th day of November, 1992.
ASCEND MEDICAL CORP.
/s/ KYLE M. FINK, M.D.
BY: ------------------------------
Kyle M. Fink, M.D., President
/s/ KYLE M. FINK, M.D.
ATTEST: ------------------------------
Kyle M. Fink, M.D., Secretary
<PAGE>
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AMERICAN ONCOLOGY RESOURCES, INC.", FILED IN THIS OFFICE ON THE TENTH DAY OF
MARCH, A.D. 1994, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8504078
DATE: 06-10-97
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 03/10/1994
944037641 - 2314505
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN ONCOLOGY RESOURCES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
AMERICAN ONCOLOGY RESOURCES, INC.
2. The certificate of incorporation of the Corporation is hereby amended
by striking out the first paragraph of the fourth article thereof and by
substituting in lieu of said paragraph the following new paragraph:
"The total number of shares of capital stock which the Corporation
shall have authority to issue is twenty-six million (26,000,000)
shares, consisting of one million (1,000,000) shares of preferred
stock, par value $.01 per share, and twenty-five million (25,000,000)
shares of common stock, par value $.01 per share."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted in accordance with the provisions of Section 228 and 242 of
the General Corporation Law of the State of Delaware. The holders of a majority
of outstanding stock entitled to vote thereon, by written consent in accordance
with the provisions of Section 228 of the General Corporation Law of the State
of Delaware, voted in favor of the amendment. Prompt written notice of the
adoption of the amendment herein certified has been given to those stockholders
who have not consented in writing thereto, as provided in Section 228 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its Chairman of the Board and Chief Executive Officer and attested to
by its Secretary, this 9th day of March, 1994.
AMERICAN ONCOLOGY RESOURCES, INC.
By:/s/ R. Dale Ross
-------------------------------------------
R. Dale Ross, Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ Leo E. Sands
- -----------------------
Leo E. Sands, Secretary
<PAGE>
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AMERICAN ONCOLOGY RESOURCES, INC.", FILED IN THIS OFFICE ON THE SECOND DAY
OF MAY, A.D. 1995, AT 3:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8504077
DATE: 06-10-97
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 03:30 PM 05/02/1995
950096983 - 2314505
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN ONCOLOGY RESOURCES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
AMERICAN ONCOLOGY RESOURCES, INC.
2. The certificate of incorporation of the Corporation is hereby amended
by striking out the first paragraph of the fourth article thereof and by
substituting in lieu of said paragraph the following new paragraph:
"The total number of shares of capital stock which the Corporation
shall have authority to issue is forty-one million (41,000,000)
shares, consisting of one million (1,000,000) shares of preferred
stock, par value $.01 per share, and forty million (40,000,000) shares
of common stock, par value $.01 per share."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted in accordance with the provisions of Section 228 and 242 of
the General Corporation Law of the State of Delaware. The holders of a majority
of outstanding stock entitled to vote thereon, by written consent in accordance
with the provisions of Section 228 of the General Corporation Law of the State
of Delaware, voted in favor of the amendment. Prompt written notice of the
adoption of the amendment herein certified has been given to those stockholders
who have not consented in writing thereto, as provided in Section 228 of the
General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its Chairman of the Board and Chief Executive Officer and attested to
by its Secretary, this 2nd day of May, 1995.
AMERICAN ONCOLOGY RESOURCES, INC.
By:/s/ R. Dale Ross
-------------------------------------------
R. Dale Ross, Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ Leo E. Sands
- -----------------------
Leo E. Sands, Secretary
<PAGE>
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AMERICAN ONCOLOGY RESOURCES, INC.", FILED IN THIS OFFICE ON THE TENTH DAY OF
MAY, A.D. 1996, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8504076
DATE: 06-10-97
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 05/10/1996
960136590 - 2314505
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN ONCOLOGY RESOURCES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
AMERICAN ONCOLOGY RESOURCES, INC.
2. The certificate of incorporation of the Corporation is hereby amended
by striking out the first paragraph of the fourth article thereof and by
substituting in lieu of said paragraph the following new paragraph:
"The total number of shares of capital stock which the Corporation
shall have authority to issue is sixty-one million (61,000,000)
shares, consisting of one million (1,000,000) shares of preferred
stock, par value $.01 per share, and sixty million (60,000,000) shares
of common stock, par value $.01 per share."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware; the amendment was duly adopted
by resolution of the Board of Directors on February 8, 1996, and the necessary
shares as required by statute were voted in favor of the amendment of the Annual
Meeting of Stockholders held on May 9, 1996.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its Chairman of the Board and Chief Executive Officer and attested to
by its Secretary, this 9th day of May, 1996.
AMERICAN ONCOLOGY RESOURCES, INC.
By:/s/ R. Dale Ross
-------------------------------------------
R. Dale Ross, Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ Leo E. Sands
- -----------------------
Leo E. Sands, Secretary
<PAGE>
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF AMENDMENT
OF "AMERICAN ONCOLOGY RESOURCES, INC.", FILED IN THIS OFFICE ON THE EIGHTH DAY
OF MAY, A.D. 1997, AT 9 O'CLOCK A.M.
/s/ EDWARD J. FREEL
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8504075
DATE: 06-10-97
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
AMERICAN ONCOLOGY RESOURCES, INC.
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation") is
AMERICAN ONCOLOGY RESOURCES, INC.
2. The certificate of incorporation of the Corporation is hereby amended
by striking out the first paragraph of the fourth article thereof and by
substituting in lieu of said paragraph the following new paragraph:
"The total number of shares of capital stock which the Corporation
shall have authority to issue is eighty-one million (81,000,000)
shares, consisting of one million (1,000,000) shares of preferred
stock, par value $.01 per share, and eighty million (80,000,000)
shares of common stock, par value $.01 per share."
3. The amendment of the certificate of incorporation herein certified has
been duly adopted in accordance with the provisions of Section 242 of the
General Corporation Law of the State of Delaware; the amendment was duly adopted
by resolution of the Board of Directors on February 8, 1997, and the necessary
shares as required by statute were voted in favor of the amendment of the Annual
Meeting of Stockholders held on May 8, 1997.
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its Chairman of the Board and Chief Executive Officer and attested to
by its Secretary, this 8th day of May, 1997.
AMERICAN ONCOLOGY RESOURCES, INC.
By: /s/ R. Dale Ross
--------------------------------------------
R. Dale Ross, Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ Leo E. Sands
- -----------------------
Leo E. Sands, Secretary
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 09:00 AM 05/08/1997
971151417 - 2314505
<PAGE>
PAGE 1
STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
DESIGNATION OF "AMERICAN ONCOLOGY RESOURCES, INC.", FILED IN THIS OFFICE ON THE
SECOND DAY OF JUNE, A.D. 1997, AT 12:30 O'CLOCK P.M.
/s/ EDWARD J. FREEL
------------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8504074
DATE: 06-10-97
<PAGE>
STATE OF DELAWARE
SECRETARY OF STATE
DIVISION OF CORPORATIONS
FILED 12:30 PM 06/02/1997
971178271 - 2314505
CERTIFICATE OF DESIGNATIONS,
PREFERENCES AND RIGHTS OF SERIES A PREFERRED STOCK
of
AMERICAN ONCOLOGY RESOURCES, INC.
(Pursuant to Section 151(g)
of the Delaware General Corporation Law)
It is hereby certified that:
1. The name of the corporation is AMERICAN ONCOLOGY RESOURCES, INC.
(hereinafter called the "Corporation").
2. That, pursuant to the authority conferred upon the Board of Directors
by the Certificate of Incorporation, as amended to date, of the said Corporation
and pursuant to the provisions of Section 151(a) of the Delaware General
Corporation Law, the Board of Directors on May 16, 1997 duly adopted, by all
necessary action on the part of the Corporation, the following resolution
creating a series of five-hundred thousand (500,000) shares of Preferred Stock
designated as Series A Preferred Stock;
<PAGE>
RESOLVED, that pursuant to the authority granted to and vested in the Board
of Directors of this Corporation in accordance with the provisions of the
Certificate of Incorporation, the Board of Directors hereby creates a series of
Series A Preferred Stock, with a par value of $.01 per share, of the Corporation
and hereby states the designation and number of shares, and fixes the relative
rights, preferences and limitations thereof (in addition to the provisions set
forth in the Certificate of Incorporation which are applicable to the Preferred
Stock of all classes and series) as follows:
SERIES A PREFERRED STOCK
Section 1. Designation, Par Value and Amount. The shares of such series
shall be designated as "Series A Preferred Stock" (hereinafter referred to as
"Series A Preferred Stock"), the shares of such series shall be with par value
of $.01 per share, and the number of shares constituting such series shall be
500,000; provided, however, that, if more than a total of 500,000 shares of
Series A Preferred Stock shall be issuable upon the exercise of Rights (the
"Rights") issued pursuant to the Rights Agreement, dated as of May 29, 1997
between the Corporation and American Stock Transfer & Trust Company, as Rights
Agent (as amended from time to time) (the "Rights Agreement"), the Board of
Directors of the Corporation, pursuant to Section 151(a) of the Delaware General
Corporation Law, shall direct by resolution or resolutions that a certificate be
properly executed, acknowledged and filed providing for the total number of
shares of Series A Preferred Stock authorized to be issued to be increased (to
the extent that the Certificate of Incorporation then permits) to the largest
number of whole shares (rounded up to the nearest whole number) issuable upon
exercise of the Rights.
A-2
<PAGE>
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends, the holders of shares of
Series A Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of assets legally available for the purpose,
quarterly dividends payable in cash on the first business day of January, April,
July and October in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preferred Stock, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $10.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per share amount of
all cash dividends, and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions other than a dividend
payable in shares of Common Stock, par value $.01 per share, of the Corporation
(the "Common Stock") or a subdivision of the outstanding shares of Common Stock
(by reclassification or otherwise), declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series A Preferred Stock.
(B) The Corporation shall declare a dividend or distribution on the Series
A Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock
A-3
<PAGE>
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $10.00 per share on
the Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A Preferred Stock, unless
the date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares shall
begin to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend Payment Date,
in either of which events such dividends shall begin to accrue and be cumulative
from such Quarterly Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share by share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 30 days prior to the date
fixed for the payment thereof.
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Section 3. Voting Rights. The holders of shares of Series A Preferred
Stock shall have the following voting rights:
(A) Except as provided in paragraph C of this Section 3 and subject to the
provision for adjustment hereinafter set forth, each share of Series A Preferred
Stock shall entitle the holder thereof to 1,000 votes on all matters submitted
to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided herein or by law, the holders of shares
of Series A Preferred Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If, on the date used to determine stockholders of record for any
meeting of stockholders for the election of directors, a default in preference
dividends (as defined in subparagraph (v) below) on the Series A Preferred Stock
shall exist, the holders of the Series A Preferred Stock shall have the right,
voting as a class as described in subparagraph (ii) below, to elect two
directors (in addition to the directors elected by holders of Common Stock of
the Corporation). Such right may be exercised (a) at any meeting of
stockholders for the election of directors or (b) at a meeting of the holders of
shares of Voting Preferred Stock (as hereinafter defined), called for the
purpose in accordance with the Bylaws of the Corporation, until all such
cumulative dividends (referred to above) shall have been paid in full or until
non-cumulative dividends have been paid regularly for at least one year.
(ii) The right of the holders of Series A Preferred Stock to elect two
directors, as described above, shall be exercised as a class concurrently with
the rights of holders of any other series of Preferred Stock upon which voting
rights to elect such directors have been conferred and are then exercisable.
The Series A Preferred Stock and any additional series of Preferred
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Stock which the Corporation may issue and which may provide for the right to
vote with the foregoing series of Preferred Stock are collectively referred to
herein as "Voting Preferred Stock."
(iii) Each director elected by the holders of shares of Voting Preferred
Stock shall be referred to herein as a "Preferred Director." A Preferred
Director so elected shall continue to serve as such director for a term of one
year, except that upon any termination of the right of all of such holders to
vote as a class for Preferred Directors, the term of office of such directors
shall terminate. Any Preferred Director may be removed by, and shall not be
removed except by, the vote of the holders of record of a majority of the
outstanding shares of Voting Preferred Stock then entitled to vote for the
election of directors present (in person or by proxy) and voting together as a
single class (a) at a meeting of the stockholders, or (b) at a meeting of the
holders of shares of such Voting Preferred Stock, called for such purpose in
accordance with the Bylaws of the Corporation, or (c) by written consent signed
by the holders of a majority of the then outstanding shares of Voting Preferred
Stock then entitled to vote for the election of directors, taken together as a
single class.
(iv) So long as a default in any preference dividends on the Series A
Preferred Stock shall exist or the holders of any other series of Voting
Preferred Stock shall be entitled to elect Preferred Directors, (a) any vacancy
in the office of a Preferred Director may be filled (except as provided in the
following clause (b)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (b) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote or
written consent of the holders of a majority of the outstanding shares of Voting
Preferred Stock then entitled to vote for the
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election of directors, present (in person or by proxy) and voting together as a
single class, at such time as the removal shall be effected. Each director
appointed as aforesaid by the remaining Preferred Director shall be deemed, for
all purposes hereof, to be a Preferred Director. Whenever (x) no default in
preference dividends on the Series A Preferred Stock shall exist and (y) the
holders of other series of Voting Preferred Stock shall no longer be entitled to
elect such Preferred Directors, then the number of directors constituting the
Board of Directors of the Corporation shall be reduced by two.
(v) For purposes hereof, a "default in preference dividends" on the Series
A Preferred Stock shall be deemed to have occurred whenever the amount of
cumulative and unpaid dividends on the Series A Preferred Stock shall be
equivalent to six full quarterly dividends or more (whether or not consecutive),
and, having so occurred, such default shall be deemed to exist thereafter until,
but only until, all cumulative dividends on all shares of the Series A Preferred
Stock then outstanding shall have been paid through the last Quarterly Dividend
Payment Date or until, but only until, non-cumulative dividends have been paid
regularly for at least one year.
(E) Except as set forth herein (or as otherwise required by applicable
law), holders of Series A Preferred Stock shall have no general or special
voting rights and their consent shall not be required for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued
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and unpaid dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other distributions, on any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration (except as
provided in (iv) below) shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Corporation may at any time redeem, purchase
or otherwise acquire shares of any such junior stock in exchange for shares of
any stock of the Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred Stock;
(iv) redeem or purchase or otherwise acquire for consideration any shares
of Series A Preferred Stock, or any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with the Series
A Preferred Stock, except in accordance with a purchase offer made in writing or
by publication (as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences
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of the respective series and classes, shall determine in good faith will result
in fair and equitable treatment among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to
purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, in any other Certificate of Designation creating a
series of Preferred Stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the prior and superior rights of holders of any shares of
any series of Preferred Stock ranking prior and superior to the shares of Series
A Preferred Stock with respect to rights upon liquidation, dissolution or
winding up (voluntary or otherwise), no distribution shall be made to the
holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received $1,000 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the
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payment of the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A Preferred Stock
unless, prior thereto, the holders of shares of Common Stock shall have received
an amount per share (the "Capital Adjustment") equal to the quotient obtained by
dividing (i) the Series A Liquidation Preference by (ii) (such number in clause
(ii), the "Adjustment Number"). Following the payment of the full amount of the
Series A Liquidation Preference and the Capital Adjustment in respect of all
outstanding shares of Series A Preferred Stock and Common Stock, respectively,
holders of Series A Preferred Stock and holders of Common Stock shall receive
their ratable and proportionate share of the remaining assets to be distributed
in the ratio of the Adjustment Number to 1 with respect to such Preferred Stock
and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Series A Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of Series A Preferred Stock and the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event, however, that there are not sufficient assets
available to permit payment in full of the Capital Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then
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in any such case the shares of Series A Preferred Stock shall at the same time
be similarly exchanged or changed in an amount per share (subject to the
provision for adjustment hereinafter set forth) equal to 1,000 times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock
is changed or exchanged.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. Ranking. The Series A Preferred Stock shall rank junior to all
other series of the Corporation's Preferred Stock as to the payment of dividends
and the distribution of assets, unless the terms of any such series shall
provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of a majority or more of the outstanding shares of Series A
Preferred Stock, voting separately as a class.
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IN WITNESS WHEREOF, this Certificate of Designations is executed on behalf
of the Corporation by its Chairman of the Board and Chief Executive Officer this
29th day of May, 1997.
AMERICAN ONCOLOGY RESOURCES, INC.
By: /s/ R. Dale Ross
----------------------------------------------
R. Dale Ross
Chairman of the Board and Chief Executive Officer
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EXHIBIT 4.3
AMERICAN ONCOLOGY RESOURCES, INC.
1993 KEY EMPLOYEE STOCK OPTION PLAN
1. PURPOSE. The purpose of the 1993 Key Employee Stock Option Plan
(the "Plan"), is to provide an additional incentive to eligible key employees,
upon whom rest major responsibilities for the successful operation,
administration, and management of American Oncology Resources, Inc., a Delaware
corporation (the "Company"). It is recognized that the present and potential
contributions of the key employees are important to the continued success of the
Company. The Plan is also intended to be used to retain highly qualified
persons for the successful conduct of the business of the Company. It is
intended that these purposes will be enhanced through the awarding of Stock
Options.
2. DEFINITIONS. As used herein the words and phrases below shall have
the following meanings:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the committee, which shall be comprised
of at least two and not more than four members who are disinterested
persons as defined under rules and regulations promulgated under Section
16(b) of the Exchange Act and who shall be members of the Board, appointed
by the Board to administer the Plan, which Board shall have the power to
fill vacancies on the Committee arising by resignation, death, removal or
otherwise.
(d) "Common Stock" shall mean the common stock of the Company, $.01
par value per share, regardless of the series or class.
(e) "Company" shall mean American Onocology Resources, Inc., a
Delaware corporation.
(f) "Disability" shall mean the person so affected is unable to
engage in substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than one hundred eighty (180) days. The Committee's
determination as to whether a Participant has incurred a Disability shall
be final and conclusive as to all interested parties.
(g) "Eligible Employee" shall mean a key employee of the Company as
determined pursuant to Section 4.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
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(i) "Fair Market Value" shall mean, with respect to a share of
Common Stock on any date herein specified, the average daily Closing Price
per share of Common Stock for the ten (10) consecutive trading days
commencing fifteen (15) trading days before the date in question. The term
"Closing Price" of per share of Common Stock for a day or days shall mean
(i) if the shares of Common Stock are listed or admitted for trading on a
national securities exchange, the last reported sales price regular way,
or, in case no such reported sale takes place on such day or days, the
average of the reported closing bid and asked prices regular way, in either
case on the principal national securities exchange on which the shares of
Common Stock are listed or admitted for trading, or (ii) if the shares of
Common Stock are not listed or admitted for trading on a national
securities exchange, (A) the last transaction price of the shares of Common
Stock on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") or, in the case no such reported transaction takes place
on such day or days, the average of the reported closing bid and asked
prices thereof quoted on NASDAQ, or (B) if the shares of Common Stock are
not quoted on NASDAQ, the average of the closing bid and asked prices of
the shares of Common Stock in the over-the-counter market, as reported by
The National Quotation Bureau, Inc., or an equivalent generally accepted
reporting service, or (iii) if on any such trading days the shares of
Common Stock are not quoted by any such organization, the fair market value
per share of Common Stock on such day(s), as determined in good faith by
the Committee.
(j) "Incentive Stock Option" shall mean a stock option granted by the
Committee to an Eligible Employee under the Plan which is designated by the
Committee as an Incentive Stock Option and intended to qualify as an
Incentive Stock Option under Section 422 of the Code.
(k) "Nonqualified Stock Option" shall mean a stock option granted by
the Committee to an Eligible Employee under the Plan, which is not
designated by the Committee as an Incentive Stock Option.
(l) "Participant" shall mean any individual who has received an award
of a Stock Option and has not exercised the Stock Option and received the
Common Stock subject to the Stock Option.
(m) "Plan" shall mean the 1993 Key Employee Stock Option Plan, as
herein set forth and as amended from time to time.
(n) "Retirement" shall mean the termination of employment from the
Company constituting retirement as determined by the Committee.
(o) "Securities Act" shall mean the Securities Act of 1933, as now in
effect or as hereafter amended.
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(p) "Stock Option" shall mean an Incentive Stock Option or
Nonqualified Stock Option pursuant to which a Participant is eligible to
acquire Common Stock pursuant to the terms and conditions of the Plan and
the Stock Option Agreement.
(q) "Stock Option Agreement" shall mean the agreement described in
Section 7.
(r) "Terminated For Cause" shall mean that a Participant's employment
is terminated as a result of a breach of his or her written employment
agreement, if the Participant is subject to a written employment agreement,
or if the Committee determines that such Participant is being terminated as
a result of misconduct, dishonesty, disloyalty, disobedience or action that
might reasonably injure the Company or its business interests or
reputation.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Committee appointed by the Board. The Committee shall have authority to adopt
rules and regulations for carrying out the Plan, determine the Eligible
Employees, determine the number of Stock Options, if any, to be awarded to each
Eligible Employee, determine whether a Stock Option shall be an Incentive Stock
Option or a Nonqualified Stock Option, determine the exercise price of each
Stock Option, determine the vesting period and vesting conditions for Stock
Options, determine the series or class of Common Stock to be subject to the
Stock Option, determine the Fair Market Value of Common Stock, and interpret,
construe, and implement the provisions of the Plan. Decisions of the Committee
(including decisions regarding the interpretation and application of the Plan)
shall be binding on the Company and on all Participants and other interested
parties. The Committee shall hold its meetings at such times and places as it
deems advisable. All members of the Committee shall constitute a quorum for a
meeting. All determinations of the Committee shall be made by a majority of its
members attending the meeting. Furthermore, any decision or determination
reduced to writing and signed by a majority of the members of the Committee
shall be as effective as if it had been made by a majority vote at a meeting
properly called and held.
4. ELIGIBLE EMPLOYEES. The individuals who shall be eligible to
participate in the Plan shall be such key employees (including officers who may
be members of the Board of Directors) of the Company, or of any subsidiary of
the Company, as the Committee shall determine from time to time. No person will
be eligible for the grant of any Incentive Stock Option who owns or would own
immediately before the grant of such Incentive Stock Option, directly or
indirectly, stock possessing more than ten percent of the total combined voting
power of all classes of stock of the Company, a subsidiary or a parent
corporation. This restriction does not apply if, at the time such Incentive
Stock Option is granted, the Incentive Stock Option exercise price is at least
110% of the Fair Market Value on the date of grant and the Incentive Stock
Option by its terms is not exercisable after the expiration of five years from
the date of grant. For the purpose of this Section 4, the attribution rules of
Section 424(d) of the Code shall apply for the purpose of determining an
Eligible Employee's percentage ownership.
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<PAGE>
5. SHARES OF COMMON STOCK SUBJECT TO THE PLAN. The number of shares of
Common Stock available for Stock Options shall equal 5% of the sum of the
Company's outstanding Common Stock as of the effective date of the Plan plus the
number of shares of Common Stock issued by the Company after such effective
date; provided, however, that the number of shares available for Incentive Stock
Options shall not exceed 31,324 shares; and provided further, however, that all
outstanding and previously exercised Stock Options shall be applied against the
number of shares of Common Stock available under the Plan. The shares of Common
Stock available under the Plan may consist of shares of any series of Common
Stock provided that the rights of such shares to dividends, to liquidation
proceeds and to share in the appreciation in the value of the Company shall be
not less than the rights of any other series of Common Stock. If any Stock
Option shall expire or terminate for any reason, without being exercised, shares
of Common Stock subject to such Stock Option shall again be available for grant
in connection with grants of subsequent Stock Options.
6. STOCK OPTION TERMS.
(a) Exercise Price. The exercise price per share of Common Stock
under each Stock Option shall be determined by the Committee; provided,
however, that with respect to a Nonqualified Stock Option, such exercise
price shall not be less than 85% of the Fair Market Value per share of such
Common Stock on the date of grant, as determined by the Committee, and that
with respect to an Incentive Stock Option, such exercise price shall not be
less than 100% of the Fair Market Value per share of such Common Stock on
the date of grant, as determined by the Committee.
(b) Term. The Committee shall fix the term of each Stock Option which
shall be not more than ten years from the date of grant. In the event no
term is fixed, such term shall be ten years from the date of grant.
(c) Exercise; Transferability. The Committee shall determine the time
or times at which a Stock Option may be exercised in whole or in part;
provided, however, that other than as provided in Section 10, in no event
shall a Stock Option be exercisable before the expiration of six months
from the date of its grant or after ten years from the date of its grant.
Stock Options shall not be transferable by the Participant otherwise than
by will, under the laws of descent and distribution, or pursuant to a
qualified domestic relations order (as defined by the Code) and shall be
exercisable only by him or by his duly appointed personal representative.
(d) Incentive Stock Options. Anything in the Plan notwithstanding,
the aggregate Fair Market Value (determined as of the time the Incentive
Stock Option is granted) of the shares of Common Stock with respect to
which Incentive Stock Options are exercisable for the first time by any
Participant during any single calendar year (under the Plan and any other
incentive stock option plans of the Company and its subsidiaries or any
parent corporation) shall not exceed the sum of $100,000 (or such other
limits as may be required by the Code).
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(e) Method of Exercise. Stock Options shall be exercised by the
delivery of written notice to the Company setting forth the number of
shares of Common Stock with respect to which the Stock Option is to be
exercised and, subject to the subsequent provisions hereof, the address to
which the certificates representing shares of the Common Stock issuable
upon the exercise of such Stock Option shall be mailed. In order to be
effective, such written notice shall be accompanied at the time of its
delivery to the Company by payment of the exercise price of such shares of
Common Stock, which payment shall be made in cash or by cashier's check,
certified check, or postal or express money order payable to the order of
the Company in an amount (in United States dollars) equal to the exercise
price of such shares of Common Stock. Such notice shall be delivered in
person to the Secretary of the Company, or shall be sent by registered
mail, return receipt requested, to the Secretary of the Company, in which
case, delivery shall be deemed made on the date such notice is deposited in
the mail. In its sole and absolute discretion, the Committee may require as
an additional condition to the issuance of Common Stock upon exercise of a
Stock Option that the optionee furnish the Committee with an executed copy
of a shareholder agreement and/or voting agreement in such form as may be
required by the Committee at the time notice of exercise is delivered to
the Company. Such shareholder agreement may impose significant restrictions
on the transfer of the Common Stock received upon exercise of the Stock
Option. In addition, the Committee may require that there be presented to,
and filed with it, such evidence as it may deem necessary to establish that
the shares of Common Stock to be purchased are being acquired for
investment and not with a view to their distribution.
(f) Withholding. Whenever shares of Common Stock are to be issued or
delivered pursuant to the Plan, the Company shall require the Participant
to remit to the Company an amount sufficient to satisfy federal, state, and
local withholding tax requirements prior to the delivery of any certificate
or certificates for such shares, which payment may be made in the manner
set forth in clause (e) above or in the manner permitted by clause (g)
below. With respect to shares received by a Participant pursuant to the
exercise of an Incentive Stock Option, if such Participant disposes of any
such shares within two years from the date of grant of such option or
within one year after the transfer of such shares to the Participant, the
Company shall have the right to withhold from any salary, wages or other
compensation payable by the Company to the Participant an amount sufficient
to satisfy federal, state and local withholding tax requirements
attributable to such disposition.
(g) Alternative Payment for Stock. Alternatively, payment of the
exercise price may be made, in whole or in part, by delivery of shares of
Common Stock previously issued to the Participant. Unless otherwise
permitted by the Committee, payment of the exercise price with shares of
Common Stock shall be made only with shares owned by the Participant for at
least six (6) months. If payment is made in whole or in part in shares of
Common Stock owned by the Participant, then the Participant shall deliver
to the Company, in payment of the option price of the shares of Common
Stock
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with respect to which such Stock Option is exercised, (i) certificates
registered in the name of such Participant representing a number of shares
of Common Stock legally and beneficially owned by such Participant, free of
all liens, claims and encumbrances of every kind and having a Fair Market
Value as of the date of delivery of such notice that is not greater than
the exercise price of the shares of Common Stock with respect to which such
Stock Option is to be exercised, such certificates to be accompanied by
stock powers duly endorsed in blank by the record holder of the shares
represented by such certificates; and (ii), if the exercise price of the
shares of Common Stock with respect to which such Stock Option is to be
exercised exceeds such Fair Market Value, cash or a cashier's check,
certified check, or postal or express money order payable to the order of
the Company in an amount (in United States dollars) equal to the amount of
such excess.
The Company may extend and maintain, or arrange for the extension and
maintenance of, financing to any Participant to purchase shares pursuant to
exercise of a Stock Option and/or to pay withholding taxes on such terms as
may be approved by the Committee in its sole discretion. In considering
the terms for extension or maintenance of credit by the Company, the
Committee shall, among other factors, consider the cost to the Company of
any financing extended by the Company.
(h) Notification with Respect to Incentive Stock Options. Any
Participant who disposes of shares of Common Stock acquired on the exercise
of an Incentive Stock Option by sale or exchange either (i) within two
years after the date of the grant of the Incentive Stock Option under which
the stock was acquired or (ii) within one year after the transfer of such
shares to such Participant pursuant to exercise shall notify the Company of
such disposition and of the amount realized and of the adjusted basis in
such shares.
7. STOCK OPTION AGREEMENT. The Stock Options awarded to an Eligible
Employee shall be evidenced by a separate written agreement (the "Stock Option
Agreement") which shall be subject to the terms and provisions of the Plan, and
which shall be signed by the Participant and by the President or a Vice-
President of the Company, other than the Participant, in the name of and on
behalf of the Company. The Stock Option Agreement shall contain such provisions
as the Committee in its discretion deems advisable. In the event of any
inconsistency or conflict between the terms of the Plan and a Stock Option
Agreement, the terms of the Plan shall govern.
8. TERMINATION OF EMPLOYMENT, DEATH, DISABILITY AND RETIREMENT.
(a) Termination of Employment. If a Participant's employment is
terminated for any reason whatsoever other than death, Disability or
Retirement, with respect to any Stock Option granted pursuant to the Plan
outstanding at the time, unless otherwise established by the Committee, no
further vesting shall occur and the Participant shall be entitled to
exercise his or her rights with respect to the portion of the Stock Option
vested
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as of the date of termination for a period expiring on the earlier of (i)
the expiration date set forth in the Stock Option Agreement or (ii) thirty
(30) calendar days after such termination date and, thereafter, the Stock
Option and the Participant's rights thereunder shall be completely
terminated; provided, however, that if a Participant is Terminated for
Cause, such Participant's right to exercise the vested portion of his or
her Stock Option shall terminate as of 12:01 a.m. on the date of
termination of employment.
(b) Retirement. Unless otherwise approved by the Committee, upon the
Retirement of a Participant:
(i) any nonvested portion of any outstanding Stock Option shall
immediately terminate and no further vesting shall occur;
(ii) any vested Nonqualified Stock Option shall expire on the
earlier of (A) the expiration date set forth in the Stock Option
Agreement with respect to such Nonqualified Stock Option; or (B) the
expiration of one year after the date of Retirement; and
(iii) any vested Incentive Stock Option shall expire on the
earlier of (A) the expiration date set forth in the Stock Option
Agreement with respect to such Incentive Stock Option; or (B) the
expiration of three (3) months after the date of Retirement.
(c) Death or Disability. Upon termination of employment as a result
of death or Disability:
(i) 50% of any nonvested portion of any outstanding Stock Option
shall immediately and fully vest notwithstanding the original vesting
schedule;
(ii) any vested Nonqualified Stock Option (including those
vested pursuant to Section (c)(i)) shall expire upon the earlier of
(A) the expiration date set forth in the Stock Option Agreement with
respect to such Nonqualified Stock Option or (B) the first anniversary
of such termination of employment as a result of death or Disability;
and
(iii) any vested Incentive Stock Option (including those vested
pursuant to Section (c)(i)) shall expire upon the earlier of (A) the
expiration date set forth in the Stock Option Agreement with respect
to such Incentive Stock Option or (B) the expiration of three (3)
months after such termination of employment as a result of death and
the first anniversary of such termination of employment as a result of
Disability.
9. REQUIREMENTS OF LAW. The Company shall not be required to sell or
issue any shares of Common Stock under any Stock Option if the issuance of such
shares shall
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constitute a violation by the Participant or the Company of any provision of any
law, statute, or regulation of any governmental authority whether it be Federal
or State. Specifically, in connection with the Securities Act, upon exercise of
any Stock Option, unless a registration statement under the Securities Act is in
effect with respect to the shares of Common Stock covered by such Stock Option,
the Company shall not be required to issue such shares unless the Committee has
received evidence satisfactory to it to the effect that the holder of such Stock
Option is acquiring such shares of Common Stock for investment and not with a
view to the dis tribution thereof, and that such shares of Common Stock may
otherwise be issued without registration under the Securities Act or State
securities laws. Any determination in this connection by the Committee shall be
final, binding and conclusive. The Company may, but shall in no event be
obligated to, register any securities covered hereby pursuant to the Securities
Act. The Company shall not be obligated to take any affirmative action in order
to cause the exercise of a Stock Option, or the issuance of shares pursuant
thereto, to comply with any law or regulation of any governmental authority.
10. CHANGE IN STOCK AND ADJUSTMENTS. The existence of outstanding Stock
Options shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of, or affecting, the
Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend, or other increase
or reduction of the number of shares of Common Stock outstanding, without
receiving compensation therefor in money, services or property, then (a) the
number, class, and per share price of shares of Common Stock subject to
outstanding Stock Options hereunder shall be appropriately adjusted in such a
manner as to entitle a Participant to receive upon exercise of a Stock Option,
for the same aggregate cash consideration, the same total number and class of
shares as he would have received had he exercised his Stock Option in full
immediately prior to the event requiring the adjustment; and (b) the number and
class of shares then reserved for issuance under the Plan shall be adjusted by
substituting for the total number and class of shares of Common Stock then
reserved that number and class of shares of Common Stock that would have been
received by the owner of an equal number of outstanding shares of each class of
Common Stock as the result of the event requiring the adjustment.
After a merger of one or more corporations into the Company or after a
consolidation of the Company and one or more corporations in which the Company
is the surviving corpo ration, each holder of an outstanding Stock Option, upon
exercise of such Stock Option, shall be entitled to receive (at no additional
cost but subject to any required action by stockholders) in lieu of the number
and class of shares of Common Stock with respect to which such Stock Option is
exercisable, the number and class of shares of stock (or other securities or
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consideration) to which such holder would have been entitled pursuant to the
terms of the agreement of merger or consolidation if, immediately prior to such
merger or consolidation, such holder had been the holder of record of the same
number and class of shares of Common Stock which he would have otherwise
received upon exercise of such Stock Option.
If the Company is merged into or consolidated with another corporation
under circumstances where the Company is not the surviving corporation, or if
the Company is liquidated, or sells or otherwise disposes of substantially all
its assets to another corporation while unexercised Stock Options remain
outstanding under the Plan, (i) subject to the provisions of clause (iii) below,
after the effective date of such merger, consolidation, liquidation, or sale, as
the case may be, each holder of an outstanding Stock Option shall be entitled,
upon exercise of such Stock Option, to receive at no additional cost, in lieu of
shares of Common Stock, shares of such stock (or other securities or
consideration) as the holders of shares of Common Stock received pursuant to the
terms of the merger, consolidation, liquidation, or sale; (ii) unless otherwise
provided in the Participant's Stock Option Agreement, any limitations set forth
in or imposed pursuant to Section 8 hereof shall automatically lapse so that all
Stock Options, from and after a thirty (30) day period preceding the effective
date of such merger, consolidation, liquidation or sale, as the case may be,
shall be exercisable in full; and (iii) all outstanding Stock Options may be
canceled by the Board as of the effective date of any such merger,
consolidation, liquidation or sale provided that (a) notice of such cancellation
shall be given to each holder of a Stock Option, and (b) unless otherwise
provided in the Participants's Stock Option Agreement, each holder of a Stock
Option shall have the right to exercise such Stock Option in full (without
regard to any limitations set forth in or imposed pursuant to Section 8 hereof)
during a thirty (30) day period preceding the effective date of such merger,
consolidation, liquidation, or sale. In the event the acceleration of vesting
provided by clause (ii) or (iii) above would result in imposition of the excise
tax imposed by Section 4999 of the Code, a Participant may elect to waive such
acceleration with respect to such number of shares subject to unvested Stock
Options as the Participant shall designate, and the Participant shall be
entitled to designate from among his unvested Stock Options those Stock Options
which shall not be subject to accelerated vesting.
Except as expressly provided herein, the issue by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
for cash, property, labor, or services, either upon direct sale, exercise of
rights or warrants to subscribe therefor, or conversion of shares or obligations
of the Company convertible into such shares or other securities, shall not
affect, and no adjustment by reason thereof shall be made with respect to,
the number, class or price of shares of Common Stock then subject to outstanding
Stock Options.
11. NO RIGHTS AS STOCKHOLDER. A holder of a Stock Option shall have no
rights as a stockholder with respect to any shares of Common Stock until the
issuance of a stock certificate for such shares. Except as otherwise provided
in Section 10, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities, or other property)
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or distributions or other rights for which the record date is prior to the date
such stock certificate is issued.
12. NO EFFECT ON EMPLOYMENT RELATIONSHIP. Participation in the Plan shall
not confer upon any employee any right to continue in the employ of the Company
or interfere in any way with the right of the Company to terminate any
employee's employment at any time.
13. NO FUND ESTABLISHED. It is not intended that awards under this Plan
be set aside in a trust which would qualify as an employee's trust within the
meaning of sections 401 or 402 of the Internal Revenue Code of 1986, as amended,
or in any other type of trust, fund, or separate account. The rights of any
Participant and any person claiming under such Participant shall not rise above
or exceed those of an unsecured creditor of the Company.
14. NO ASSIGNMENT OR ALIENATION OF BENEFITS. Except as contemplated by
Section 6(c), no right or benefit under this Plan shall be subject to
anticipation, alienation, sale, assignment, pledge, encumbrance, or charge, and
any attempt to anticipate, alienate, sell, assign, pledge, encumber, or charge
the same shall be void. No right or benefit hereunder shall in any manner be
liable for or subject to any debts, contracts, liabilities, or torts of the
person entitled to such benefits.
15. LIABILITY AND INDEMNIFICATION OF COMMITTEE. No member of the
Committee shall be liable for any act or omission of any other member of the
Committee or for any act or omission on his own part, including but not limited
to the exercise of any power or discretion given to him under the Plan, except
those resulting from his own gross negligence or willful misconduct. The
Company shall indemnify each present and future member of the Committee against,
and each member of the Committee shall be entitled without further act on his
part to indemnity from the Company for all expenses (including the amount of
judgments and the amount of approved settlements made with a view to the
curtailment of costs of litigation) reasonably incurred by him in connection
with or arising out of any action, suit or proceeding in which he may be
involved by reason of his being or having been a member of the Committee,
whether or not he continues to be a member of the Committee at the time of
incurring such expenses; provided, however, that such indemnity shall not
include any expense incurred by any such member of the Committee (a) in respect
of matters as to which he shall be finally adjudged in any such action, suit, or
proceeding to have been guilty of gross negligence or willful misconduct in the
performance of his duty as such member of the Committee, or (b) in respect of
matters in which any settlement is effected in an amount in excess of the amount
approved by the Company on the advice of its legal counsel; and provided
further, that no right of indemnification under the provisions set forth herein
shall be available to or enforceable by any such member of the Committee unless,
within thirty (30) days after institution of any such action, suit, or
proceeding, he shall have offered the Company, in writing, the opportunity to
handle and defend same at its own expense. This indemnity expressly includes
any claims arising out of or based upon the negligence of the member of the
Committee. The foregoing right of indemnification shall inure to the benefit of
the heirs, executors, or administrators of
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each such member of the Committee and shall be in addition to all other rights
to which such member of the Committee may be entitled as a matter of law,
contract, or otherwise.
16. SUBSTITUTION OPTION. Stock Options may be granted under this Plan
from time to time in substitution for stock options held by employees (or
nonemployee directors) of another corporation who are about to become employees
(or nonemployee directors) of the Company as the result of a merger or
consolidation with the Company, or the acquisition by the Company of the assets
of the other corporation, or the acquisition by the Company of stock of the
other corporation as the result of which it becomes a subsidiary of the Company.
The terms and conditions of the substitute Stock Options so granted may vary
from the terms and conditions set forth in this Plan to such extent as the Board
at the time of grant may deem appropriate to conform, in whole or in part, to
the provisions of the stock options for which such substitute Stock Options are
granted.
17. GENDER, TENSE AND HEADINGS. Whenever the context requires such, words
of the masculine gender used herein shall include the feminine and neuter, and
words used in the singular shall include the plural. Section headings as used
herein are inserted solely for convenience and reference and constitute no part
of the construction of this Plan.
18. AMENDMENT AND TERMINATION. The Board may modify, revise or terminate
the Plan at any time and from time to time; provided, however, that without the
further approval of the holders of at least a majority of the outstanding shares
of Common Stock, the Board may not (i) change the aggregate number of shares
which may be issued under Stock Options pursuant to the provisions of the Plan;
(ii) reduce the option price at which Stock Options may be granted to an amount
less than 85% of the Fair Market Value per share at the time the Stock Option is
granted, or otherwise materially increase the benefits accruing to Participants
under the Plan; or (iii) change the class of persons eligible to receive Stock
Options. No amendment or termination may adversely affect any vested right of a
Participant without the written consent of such Participant.
19. NO GUARANTEE OF TAX CONSEQUENCES. Neither the Company nor the
Committee makes any commitment or guarantee that any federal, state or local tax
treatment will apply or be available to any person participating or eligible to
participate hereunder.
20. SEVERABILITY. In the event that any provision of this Plan shall be
held illegal, invalid or unenforceable for any reason, such provision shall be
fully severable, but shall not affect the remaining provisions of the Plan, and
the Plan shall be construed and enforced as if the illegal, invalid, or
unenforceable provision had never been included herein.
21. GOVERNING LAW. The provisions of the Plan shall be construed,
administered, and governed by the laws of the State of Texas, without giving
effect to principles of conflicts of laws, and, to the extent applicable, the
laws of the United States.
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22. EFFECTIVE DATE. The Plan shall become effective and shall be deemed
to have been adopted on February 17, 1993, if within one year of that date it
shall have been approved by the holders of at least the majority of the
outstanding Common Stock. No Stock Option shall be granted pursuant to the Plan
after one day more than ten years after the date the Plan was adopted by the
Board or the date the Plan was approved by the stockholders of the Company,
whichever is earlier.
23. STOCKHOLDERS APPROVAL. Notwithstanding any other provisions of the
Plan, in order for the Plan to continue as effective, on or before the date
which occurs twelve (12) months after the date the Plan is adopted by the Board,
the Plan must be approved by the holders of at least a majority of the
outstanding stock (unless applicable state law or the Company's charter or by-
laws require a greater number) of the Company entitled to vote thereon voting in
person, or by proxy, at a duly held stockholders' meeting, and no shares of
Common Stock shall be issued under the Plan until such approval has been
secured.
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RESOLVED, that first sentence of Section 5 of the Plan is hereby amended to
read in its entirety as follows:
"The number of shares of Common Stock available for Stock Options
shall equal 7% of the sum of the Company's outstanding Common Stock
as of the effective date of the Plan plus the number of shares of
Common Stock issued by the Company after such effective date
(including, solely for determining the number of shares available for
Stock Options, shares of Common Stock agreed to be issued to
physicians in connection with such physicians' causing their
respective professional corporations or other entities to enter into
management service agreements with the Company); provided, however,
that the number of shares available for Incentive Stock Options shall
not exceed 375,888 shares; and provided, further, however, that all
outstanding and previously exercised Stock Options shall be applied
against the number of shares of Common Stock available under the
Plan."
<PAGE>
EXHIBIT 5
MAYOR, DAY, CALDWELL & KEETON, L.L.P.
700 LOUISIANA, SUITE 1900
HOUSTON, TEXAS 77002-2778
(713) 225-7000
TELECOPIER (713) 225-7047
100 CONGRESS AVENUE
SUITE 1500
AUSTIN, TEXAS 78701-4042
(512) 320-9200
June 20, 1997 TELECOPIER (512) 320-9292
American Oncology Resources, Inc.
16825 Northchase Drive, Suite 1300
Houston, Texas 77060
Gentlemen:
We have acted as counsel for American Oncology Resources, Inc., a Delaware
corporation (the "Company"), in connection with the registration and proposed
sale of up to 988,193 shares (the "Shares") of the common stock, par value $.01
per share, of the Company ("Common Stock") that may be sold pursuant to the
American Oncology Resources, Inc. 1993 Key Employee Stock Option Plan, as
amended (the "Plan"), which sale will be registered by the Company's
Registration Statement of Form S-8, filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended ("Registration
Statement"). In such capacity, we have familiarized ourselves with the
Certificate of Incorporation and Bylaws of the Company and have examined all
statutes and other records, instruments and documents pertaining to the Company
that we have deemed necessary to examine for the purposes of this opinion.
Based upon our examination as aforesaid, we are of the opinion that:
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware; and
2. Upon the sale of any Shares for the consideration approved by the
Company's Board of Directors and in accordance with the terms of
the Plan, such Shares will be duly authorized, validly issued,
fully paid and nonassessable shares of the Common Stock.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the use
of our name under Item 5, "Interest of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
/s/ MAYOR, DAY, CALDWELL & KEETON, L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of American Oncology Resources, Inc. (the Company) of our
report dated March 14, 1997, which appears on page 22 of the Company's 1996
Annual Report on Form 10-K for the year ended December 31, 1996. We also
consent to the incorporation by reference of our report dated February 26, 1997,
which appears in the Current Report on Form 8-K of the Company dated April 25,
1997, on the financial statements of Texas Radiation Oncology Group, L.L.P, for
the year ended December 31, 1996.
/s/ PRICE WATERHOUSE LLP
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PRICE WATERHOUSE LLP
Houston, Texas
June 13, 1997
