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As filed with the Securities and Exchange Commission on August 25, 1999.
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
US ONCOLOGY, INC.
(formerly American Oncology Resources, Inc.)
(Exact name of Registrant as specified in its charter)
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<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 AFFILIATE STOCK OPTION PLAN
(Full title of the plan)
__________________________
Phillip H. Watts
General Counsel
US Oncology, 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) 225-7100
_____________________________
CALCULATION OF REGISTRATION FEE
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===================================================================================================================================
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 share (2) 2,000,000 $10.56 $21,125,000 $5,872
===================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c).
(2) Including an equal number of Series A Preferred Stock Purchase Rights
associated with the Common Stock.
================================================================================
<PAGE>
INCORPORATION OF CONTENTS OF EARLIER REGISTRATION STATEMENT BY REFERENCE
The contents of earlier registration statement, file number 333-782, are
incorporated by reference and made a part hereof.
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 AUGUST 12, 1999.
US ONCOLOGY, INC.
By: /s/ L. FRED POUNDS
-------------------------------------------
L. Fred Pounds
Chief Financial Officer, Vice President of
Finance and Treasurer
POWER OF ATTORNEY
Each of the undersigned directors and officers of US Oncology, 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 US Oncology, 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.
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Signature Title Date
- --------- ------ ----
<S> <C> <C>
/s/ R. DALE ROSS Chairman of the Board, Chief August 9, 1999
___________________________ Executive Officer and Director
R. Dale Ross
/s/ L. FRED POUNDS Chief Financial Officer, Vice August 9, 1999
___________________________ President of Finance and Treasurer
L. Fred Pounds
/s/ NANCY G. BRINKER Director August 9, 1999
___________________________
Nancy G. Brinker
/s/ RUSSELL L. CARSON Director August 9, 1999
___________________________
Russell L. Carson
</TABLE>
2
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<TABLE>
<CAPTION>
Signature Title Date
- --------- ------ ----
<S> <C> <C>
/s/ JOHN T. CASEY
____________________________ Director August 9, 1999
John T. Casey
/s/ J. TAYLOR CRANDELL
____________________________ Director August 9, 1999
J. Taylor Crandall
/s/ JAMES E. DALTON
____________________________ Director August 9, 1999
James E. Dalton
/s/ ROBERT W. DALY
____________________________ Director August 9, 1999
Robert W. Daly
/s/ STEPHEN E. JONES, M.D.
____________________________ Director August 9, 1999
Stephen E. Jones, M.D.
/s/ STANLEY M. MARKS, M.D.
____________________________ Director August 9, 1999
Stanley M. Marks, M.D.
/s/ RICHARD B. MAYOR
____________________________ Director August 9, 1999
Richard B. Mayor
/s/ ROBERT A. ORTENZIO
____________________________ Director August 9, 1999
Robert A. Ortenzio
/s/ BOONE POWELL, JR.
____________________________ Director August 9, 1999
Boone Powell, Jr.
/s/ EDWARD E. ROGOFF, M.D.
____________________________ Director August 9, 1999
Edward E. Rogoff, M.D.
/s/ BURTON S. SCHWARTZ, M.D.
____________________________ Director August 9, 1999
Burton S. Schwartz, M.D.
</TABLE>
3
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EXHIBIT INDEX
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Exhibit No. Description
----------- -------------
<C> <S>
4.1 Amended and Restated Certificate of Incorporation of the
Registrant - incorporated by reference from the Registrant's Form
8-K/A1 filed June 17, 1999.
4.2 Amended and Restated By-Laws of the Registrant - incorporated by
reference from the Registrant's Form 8-K/A1 filed June 17, 1999.
4.3 Rights Agreement between the Registrant and American Stock
Transfer & Trust Company - incorporated by reference to Exhibit 4
to Form 8-A of the Registrant filed June 2, 1997.
4.4 American Oncology Resources, Inc., 1993 Affiliate Stock Option
Plan, as amended.
5 Opinion of Mayor, Day, Caldwell & Keeton, L.L.P.
23.1 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Mayor, Day, Caldwell & Keeton, LLP. (included in
Exhibit 5).
24 Powers of Attorney (included on signature page of this
Registration Statement).
</TABLE>
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EXHIBIT 4.4
AMERICAN ONCOLOGY RESOURCES, INC.
1993 AFFILIATE STOCK OPTION PLAN, AS AMENDED
1. PURPOSE. The purpose of the 1993 Affiliate Stock Option Plan (the
"Plan"), is to provide an additional incentive to eligible individuals who are
not employees of American Oncology Resources, Inc., a Delaware corporation (the
"Company") or any of its subsidiaries, but whose present and potential
contributions are important to the success of the Company. It is intended that
this purpose 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 Individual" shall mean an individual eligible to participate in
the Plan as determined pursuant to Section 4.
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
(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
<PAGE>
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) "Nonqualified Stock Option" shall mean a stock option granted by the
Committee to an Eligible Individual under the Plan, none of which is
intended to qualify as an Incentive Stock Option under Section 422 of the
Code.
(k) "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.
(l) "Plan" shall mean the 1993 Affiliate Stock Option Plan, as herein set
forth and as amended from time to time.
(m) "Securities Act" shall mean the Securities Act of 1933, as now in effect
or as hereafter amended.
(n) "Stock Option" shall mean a 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.
(o) "Stock Option Agreement" shall mean the agreement described in Section 7.
(p) "Terminated For Cause" shall mean that a Participant's services to or
activities on behalf of the Company are terminated as a result of a
determination by the Committee that such termination is a result of
misconduct, dishonesty, disloyalty,
2
<PAGE>
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
Individuals, determine the number of Stock Options, if any, to be awarded to
each Eligible Individual, 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 INDIVIDUALS. The individuals who shall be eligible to
participate in the Plan shall be such individuals, as the Committee shall
determine from time to time, who are not employees of the Company (or of any
subsidiary of the Company), but whose services or efforts are necessary or
desirable in connection with the operation, administration or management of the
Company or any subsidiary (including without limitation, consultants and
advisors to the Company or any subsidiary and individuals who are owners or
employees of medical practices managed by the Company or any subsidiary).
5. SHARES OF COMMON STOCK SUBJECT TO THE PLAN. The number of shares of
Common Stock available for Stock Options shall be 3,000,000. 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 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.
3
<PAGE>
(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) 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.
(e) Withholding. Whenever shares of Common Stock are to be issued or
delivered pursuant to the Plan, as a condition to the issuance of such shares,
the Company may 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 (d) above or in
the manner permitted by clause (f) below.
4
<PAGE>
(f) 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 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.
7. STOCK OPTION AGREEMENT. The Stock Options awarded to an Eligible
Individual 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.
5
<PAGE>
8. TERMINATION, DEATH, AND DISABILITY.
(a) Termination. If a Participant's engagement by or relationship with the
Company is terminated by the Participant or the Company for any reason
whatsoever other than death or disability, the Company shall confirm such fact
by a written notice to the Participant (which shall set forth the effective
date of such termination) and, with respect to any Stock Option granted
pursuant to the Plan and 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 as of the effective 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 the effective date of
such termination and, thereafter, the Participant's rights shall be completely
terminated; provided, however, that if a Participant is Terminated for Cause,
no further vesting shall occur and 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.
(b) Death or Disability. Upon the death or Disability of a Participant:
(i) 50% of any nonvested portion of any outstanding Stock Option shall
immediately and fully vest notwithstanding the original vesting schedule;
and
(ii) any vested Stock Option (including those vested pursuant to
Section (b)(i)) shall expire upon the earlier of (A) the expiration date
set forth in the Stock Option Agreement with respect to such Stock Option
or (B) the first anniversary of the Participant's death or 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 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 distribution 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.
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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 corporation, 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
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
7
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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) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued.
12. NO EFFECT ON RELATIONSHIP. Participation in the Plan shall not confer
upon any individual any right to continue his or her engagement by or
relationship with the Company or interfere in any way with the right of the
Company to terminate any such engagement or relationship 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 Code of 1986 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.
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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 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. 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.
17. 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
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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.
18. 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.
19. 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.
20. 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.
21. EFFECTIVE DATE. The Plan shall become effective and shall be deemed to
have been adopted on December 15, 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 the
tenth anniversary of the date the Plan was adopted by the Board.
22. 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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EXHIBIT 5
[Mayor, Day, Caldwell & Keeton, L.L.P. Letterhead]
August 18, 1999
US Oncology, Inc.
16825 Northchase Drive, Suite 1300
Houston, Texas 77060
Gentlemen:
We have acted as counsel for US Oncology, Inc., a Delaware corporation (the
"Company"), in connection with the registration and proposed sale of up to
2,000,000 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 Affiliate Stock Option Plan, as amended (the
"Plan"), which sale will be registered by the Company's Registration Statement
on 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 (American Oncology Resources, Inc. 1993 Affiliate Stock
Option Plan) of US Oncology, Inc. of our report dated March 2, 1999, except
paragraph 2 of Note 1 which is as of June 15, 1999, appearing on page 3 of US
Oncology, Inc.'s Report for the year ended December 31, 1998 as filed on
Form 8-K/A filed August 16, 1999.
/s/ PricewaterhouseCoopers LLP
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PRICEWATERHOUSECOOPERS LLP
Houston, Texas
August 23, 1999
