<PAGE>
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)
<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)
__________________________
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
<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 share (2) 8,924,885 $10.56 $94,269,098 $26,207
====================================================================================================================================
</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 statements, file numbers 333-786 and
333-30057, are incorporated by reference and made a part hereof.
<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 AUGUST 9, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ R. Dale Ross
- ------------------------------- Chairman of the Board, Chief August 9, 1999
R. Dale Ross Executive Officer and Director
/s/ L. Fred Pounds
- ------------------------------- Chief Financial Officer, Vice August 9, 1999
L. Fred Pounds President of Finance and Treasurer
/s/ Nancy G. Brinker
- ------------------------------- Director August 9, 1999
Nancy G. Brinker
/s/ Russell L. Carson
- ------------------------------- Director August 9, 1999
Russell L. Carson
</TABLE>
2
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ JOHN T. CASEY
- ------------------------------- Director August 9, 1999
John T. Casey
/s/ J. TAYLOR CRANDALL
- ------------------------------- 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
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
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 Key Employee 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, L.L.P. (included in
Exhibit 5).
24 Powers of Attorney (included on signature page of this
Registration Statement).
</TABLE>
4
<PAGE>
EXHIBIT 4.4
AMERICAN ONCOLOGY RESOURCES, INC.
1993 KEY EMPLOYEE STOCK OPTION PLAN, AS AMENDED
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.
<PAGE>
(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.
<PAGE>
(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.
<PAGE>
5. SHARES OF COMMON STOCK SUBJECT TO THE PLAN. The number of shares of
Common Stock available for Stock Options shall equal 12% 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 (or their
affiliates) in connection with such physician's (or their affiliates') direct or
indirect agreement to enter into long-term management agreement with the Company
(or a subsidiary thereof)), 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. 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.
<PAGE>
(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).
(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
<PAGE>
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 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
<PAGE>
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 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
<PAGE>
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 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.
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
<PAGE>
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 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.
<PAGE>
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 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
<PAGE>
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. 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.
<PAGE>
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.
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.
<PAGE>
EXHIBIT A
AMERICAN ONCOLOGY RESOURCES, INC.
STOCK OPTION AGREEMENT
UNDER THE 1993 KEY EMPLOYEE STOCK OPTION PLAN
This agreement is made as of ________________, 199__, between American
Oncology Resources, Inc., a Delaware corporation (the "Company"), and
_____________________ ("Participant").
WHEREAS, the Company has adopted the 1993 Key Employee Stock Option Plan (the
"Plan"), which permits the grant of stock options ("Stock Options") to purchase
shares of the Company's common stock, par value $.01 per share, regardless of
the series or class ("Common Stock"), to eligible key employees; and
WHEREAS, Participant is employed by the Company, and the Company wants to
issue Stock Options to Participant;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
Section 1. Definitions. Any capitalized term used and not otherwise defined
herein shall have the meaning ascribed to such term in the Plan.
Section 2. Grant of Stock Option. The Company hereby grants to Participant
the option to purchase up to ________ shares of Common Stock at an exercise
price of $_____ per share. The Stock Options granted by this Section 2 may, as
provided by the Plan, be exercised in whole or in part at any time after the
Stock Options are vested as provided in Section 3 below. In no event may the
Stock Options be exercised in whole or in part, after the expiration of the term
described in Section 5 below.
Section 3. Vesting Schedule. Except to the extent otherwise provided by the
Plan, the Stock Options granted under Section 2 shall vest and be exercisable as
provided in the following schedule:
<TABLE>
<CAPTION>
Date Percentage of Stock Options Vested
----------------- ---------------------------------------
<S> <C>
</TABLE>
However, all shares covered by the Stock Options may be exercised fully and
immediately without regard to the vesting schedule set forth in this section in
the event of the occurrence of an event specified in the fourth paragraph of
Section 10 of the Plan, and 50% of all shares covered by the Stock Options that
are not then vested may be exercised fully and immediately without regard to the
vesting schedule set forth in this section in the event of the Participant's
death or Disability, as provided for in Section 8(c) of the Plan.
<PAGE>
Section 4. Characterization of Stock Options. A Stock Option granted under
Section 2 will constitute an Incentive Stock Option or Nonqualified Option as
set forth in the following schedule:
<TABLE>
<CAPTION>
Date Incentive Stock Options Nonqualified Stock Options
- ------------------------------- ------------------------------- -------------------------------
<S> <C> <C>
</TABLE>
When exercising a Stock Option, the Participant shall notify the Company
whether the Stock Option exercised is an Incentive Stock Option or a
Nonqualified Stock Option. The Company shall maintain appropriate records
concerning the number and types of Stock Options that are exercised by the
Participant.
Section 5. Expiration Date of Stock Option. The Stock Options granted
pursuant to this Stock Option Agreement shall expire and be of no force and
effect on the first to occur of the following:
(a) 11:59 p.m. on the day before the tenth anniversary of the date of this
Agreement;
(b) upon termination of employment as a result of death or Disability:
(i) 50% of any nonvested portion of any outstanding Stock Options
shall immediately and fully vest notwithstanding the original vesting
schedule; (ii) any vested Nonqualified Stock Option (including those
vested pursuant to Section 5(b)(i)) shall expire upon the earlier of
(A) _____________ 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
5(b)(i)) shall expired upon the earlier of (A) ____________________ 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.
(c) unless otherwise approved by the Committee, upon the Retirement of the
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) _________________ 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) _________________ or (B) the expiration
of three (3) months after the date of Retirement; or
(d) the expiration of thirty (30) calendar days from the date of
termination of the Participant's employment with the Company for any
reason other than death, Disability or Retirement; provided, however,
that if Participant is Terminated for Cause, as defined in the Plan,
Participant's right to exercise a Stock Option shall terminate as of
12:01 a.m. on the date of termination of employment.
<PAGE>
Section 6. Compliance with Securities Law. The Company shall not be required
to sell or issue any shares under this Stock Option Agreement if the issuance of
such shares shall constitute a violation by the Participant or the Company of
any provisions of any law, statute, or regulation of any governmental authority.
In addition, in connection with the Securities Act of 1933, as now in effect or
as hereafter amended (the "Act"), upon exercise of this Stock Option, the
Company shall not be required to issue any such shares unless the Committee, as
defined under the Plan, has received evidence satisfactory to it to the effect
that the Participant will not transfer such shares except pursuant to a
registration statement in effect under the Act or unless an opinion of counsel
satisfactory to the Company has been received by the Company to the effect that
such registration is not required. Any determination in this connection by the
Committee shall be final, binding, and conclusive. In the event the shares
issuable on exercise of the Stock Option are not registered under the Act, the
Company may imprint the following legend or any other legend which counsel for
the Company considers necessary or advisable to comply with the Act:
"The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 or under the securities laws of
any state and may not be sold or transferred except upon such registration
or upon receipt by the Company of an opinion of counsel satisfactory to the
Company that registration is not required for such sale or transfer."
The Company may, but shall in no event be obligated to, register any securities
covered hereby pursuant to the Act; and in the event any shares are so
registered the Company may remove any legend on certificates representing such
shares. The Company shall not be obligated to take any other affirmative action
in order to cause the exercise of this Stock Option or the issuance of shares
pursuant thereto to comply with any law or regulation of any governmental
authority.
Section 7. Plan Governing. Participant hereby acknowledges receipt of a copy
of the Plan and accepts and agrees to be bound by all of the terms and
conditions of the Plan as if it had been set out verbatim in this Stock Option
Agreement. In the event of a conflict between the terms of the Plan and the
terms of this Agreement, the terms of the Plan shall control.
Dated: ___________________
AMERICAN ONCOLOGY RESOURCES, INC.,
a Delaware corporation
By:____________________________________
Name:__________________________________
Title:_________________________________
ACCEPTED:
____________________________
Participant
<PAGE>
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
8,924,885 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
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 Key Employee Stock
Option Plan) of US Oncology, Inc. of our report dated March 2, 1999, except for
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
- -------------------------------
PricewaterhouseCoopers LLP
Houston, Texas
August 23, 1999
