-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hvh7RXCPjaltkckKmBO6wzJ8GmtwvtXlpTFf1anFxE00yEEYOWByZXHnepOHWaMM QqpoR+0PD787Ovtx9BwFng== 0000950144-97-013237.txt : 19971212 0000950144-97-013237.hdr.sgml : 19971212 ACCESSION NUMBER: 0000950144-97-013237 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971211 EFFECTIVENESS DATE: 19971211 SROS: NONE FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMSURG CORP CENTRAL INDEX KEY: 0000895930 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOSPITALS [8060] IRS NUMBER: 621493316 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-41961 FILM NUMBER: 97736016 BUSINESS ADDRESS: STREET 1: ONE BURTON HILLS BLVD. STREET 2: STE 350 CITY: NASHVILLE STATE: TN ZIP: 37215 BUSINESS PHONE: 6156651283 MAIL ADDRESS: STREET 1: ONE BURTON HILLS BLVD. STREET 2: SUITE 350 CITY: NASHVILLE STATE: TN ZIP: 37215 S-8 1 AMSURG CORP. FORM S-8 1 As filed with the Securities and Exchange Commission on December 11, 1997 Registration No. 333-_____ - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------------- AMSURG CORP. -------------------------- (Exact name of registrant as specified in its charter) TENNESSEE ----------------------------------------- (State or other jurisdiction of incorporation or organization) 62-1493316 -------------------------- (I.R.S. employer identification no.) ONE BURTON HILLS BOULEVARD, SUITE 350 NASHVILLE, TN 37215 -------------------------- (Address of principal executive offices) 1992 STOCK OPTION PLAN -------------------------- 1997 STOCK INCENTIVE PLAN -------------------------- (Full title of the plan) CLAIRE M. GULMI ONE BURTON HILLS BOULEVARD, SUITE 350 NASHVILLE, TN 37215 -------------------------- (Name and address of agent for service) (615) 665-1283 -------------------------- (Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE - ---------------------------------------------------------------------------------------------------------------- Proposed maximum Proposed maximum Amount of Title of securities Amount to be offering price aggregate offering registration to be registered registered per share (1) price (1) fee - ---------------------------------------------------------------------------------------------------------------- Class A Common Stock 1,577,333 shares $9.00 $14,195,997 $4,302 - ----------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the amount of the registration fee. Such estimates have been calculated in accordance with Rule 457(h) under the Securities Act of 1933, as amended, and are based on the average of the high and low price per share of the Registrant's Common Stock as reported on The Nasdaq Stock Market's National Market (the "National Market") on December 4, 1997. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents previously filed by AmSurg Corp. (the "Registrant") with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference: 1. The Registrant's Registration Statement on Form 10 dated March 11, 1997 filed pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as amended (the "Form 10"); 2. The Registrant's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1997 and September 30, 1997; and 3. The description of the Registrant's Class A Common Stock, no par value per share (the "Class A Common Stock"), contained in the Form 10, including all amendments and reports filed for the purpose of updating such description prior to the termination of the offering of the Class A Common Stock offered hereby. All documents and reports subsequently filed by the Registrant pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, after the date hereof and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all shares offered hereby have been sold or which deregisters all shares then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statements contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or replaced for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein) modifies or replaces such statement. Any statement so modified or replaced shall not be deemed, except as so modified or replaced, to constitute a part hereof. ITEM 4. DESCRIPTION OF SECURITIES. Inapplicable. II-1 3 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. The validity of the shares of Class A Common Stock registered hereby will be passed upon for the Registrant by Bass, Berry & Sims PLC, Nashville, Tennessee. Certain members of Bass, Berry & Sims PLC beneficially own 136,434 shares of Class A Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Tennessee Business Corporation Act (the "TBCA") provides that a corporation may indemnify any of its directors and officers against liability incurred in connection with a proceeding if: (a) such person acted in good faith; (b) in the case of conduct in an official capacity with the corporation, he reasonably believed such conduct was in the corporation's best interests; (c) in all other cases, he reasonably believed that his conduct was at least not opposed to the best interests of the corporation; and (d) in connection with any criminal proceeding, such person had no reasonable cause to believe his conduct was unlawful. In actions brought by or in the right of the corporation, however, the TBCA provides that no indemnification may be made if the director or officer was adjudged to be liable to the corporation. The TBCA also provides that in connection with any proceeding charging improper personal benefit to an officer or director, no indemnification may be made if such officer or director is adjudged liable on the basis that such personal benefit was improperly received. Notwithstanding the foregoing, the TBCA provides that a court of competent jurisdiction, unless the corporation's charter provides otherwise, upon application, may order that an officer or director be indemnified for reasonable expenses if, in consideration of all relevant circumstances, the court determines that such individual is fairly and reasonably entitled to indemnification, notwithstanding the fact that: (a) such officer or director was adjudged liable to the corporation in a proceeding by or in the right of the corporation; (b) such officer or director was adjudged liable on the basis that personal benefit was improperly received by him; or (c) such officer or director breached his duty of care to the corporation. The Registrant's Charter and Bylaws require the Registrant to indemnify its directors and officers to the fullest extent permitted by law with respect to all liability and loss suffered and expense reasonably incurred by such person in any action, suit or proceeding in which such person was or is made, or threatened to be made, a party, or is otherwise involved by reason of the fact that such person is or was a director or officer of the Registrant. In addition, the Registrant's Charter provides that Registrant's directors shall not be personally liable to the Registrant or its shareholders for monetary damages for breach of any fiduciary duty as a director of the Registrant except to the extent such exemption from liability or limitation thereof is not permitted under the TBCA. Under the TBCA, this provision does not relieve the Registrant's directors from personal liability to the Registrant or its shareholders for monetary damages for breach of fiduciary duty as a director, to the extent such liability arises from II-2 4 a judgment or other final adjudication establishing: (a) any breach of the director's duty of loyalty; (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or (c) any unlawful distributions. Nor does this provision eliminate the duty of care and, in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under Tennessee law. Finally, this provision does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. The Registrant has entered into indemnification agreements with all of its directors and executive officers providing that it will indemnify those persons to the fullest extent permitted by law against claims arising out of their actions as officers or directors of the Registrant and will advance expenses of defending claims against them. The Registrant believes that indemnification under these agreements covers at least negligence and gross negligence by the directors and officers, and requires the Registrant to advance litigation expenses in the case of actions, including stockholder derivative actions, against an undertaking by the officer or director to repay any advances if it is ultimately determined that the officer or director is not entitled to indemnification. The Registrant believes that its Charter and Bylaw provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers. At present, there is no litigation or proceeding involving a director or officer of Registrant as to which indemnification is being sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification by any officer or director. Pursuant to Management and Human Resources Agreement between the Registrant and American Healthcorp, Inc. ("AHC") (the "Management Agreement"), the Registrant will indemnify and hold AHC, its directors, officers, employees and agents and any person who controls AHC within the meaning of the Securities Act of 1933, as amended (the "Securities Act") in the absence of gross negligence, harmless from and against any and all liabilities, claims or damages (including the cost of investigating any claim and reasonable attorneys' fees and disbursements) in connection with any services performed by AHC pursuant to the Management Agreement or any transactions or conduct in connection therewith. The Registrant has purchased an executive liability insurance policy which will provide coverage for its directors and officers. Under this policy, the insurer will agree to pay, subject to certain exclusions (including violations of securities laws), for any claim made against a director or officer of the Registrant for a wrongful act by such director or officer, but only if and to the extent such director or officer becomes legally obligated to pay such claim or the Registrant is required to indemnify the director or officer for such claim. II-3 5 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Inapplicable. ITEM 8. EXHIBITS. See Exhibit Index (page II-8). ITEM 9. UNDERTAKINGS. A. The Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. II-4 6 B. The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-5 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Nashville, State of Tennessee, on the 11th day of December, 1997. AMSURG CORP. By: /s/ KEN P. MCDONALD ------------------------ Ken P. McDonald President and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, each person whose signature appears below hereby constitutes and appoints Ken P. McDonald and Claire M. Gulmi and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments to this Registration Statement, and to file the same, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - ------------------------------------- ---------------------------------------------- ------------------------ /s/ KEN P. MCDONALD - ------------------------------------- President, Chief Executive Officer December 11, 1997 Ken P. McDonald and Director (Principal Executive Officer) /s/ CLAIRE M. GULMI - ------------------------------------- Senior Vice President, Chief Financial December 11, 1997 Claire M. Gulmi Officer and Secretary (Principal Financial and Accounting Officer)
II-6 8
Signature Title Date - ------------------------------------- ---------------------------------------------- ------------------------ /s/ THOMAS G. CIGARRAN - ------------------------------------- Director December 9, 1997 Thomas G. Cigarran - ------------------------------------- Director James A. Deal - ------------------------------------- Director Steven I. Geringer - ------------------------------------- Director Debora A. Guthrie /s/ HENRY D. HERR - ------------------------------------- Director December 9, 1997 Henry D. Herr /s/ BERGEIN F. OVERHOLT - ------------------------------------- Director December 9, 1997 Bergein F. Overholt, M.D.
II-7 9 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION ------ ----------- 4.1 Amended and Restated Charter of AmSurg Corp. (incorporated by reference to Exhibit 3.1 of the Registrant's Registration Statement on Form 10, as amended (filed with the Commission on March 11, 1997)) 4.2 Amended and Restated Bylaws of AmSurg Corp. (incorporated by reference to Exhibit 3.2 of the Registrant's Registration Statement on Form 10, as amended (filed with the Commission on March 11, 1997)) 4.3 1992 Stock Option Plan, as amended 4.4 1997 Stock Incentive Plan (incorporated by reference to Exhibit 10.8 of the Registrant's Registration Statement on Form 10, as amended, (filed with the Commission on March 11, 1997)) 5 Opinion of Bass, Berry & Sims PLC 23.1 Consent of Bass, Berry & Sims PLC (included in Exhibit 5) 23.2 Consent of Deloitte & Touche LLP 24 Power of Attorney (included on page II-5)
II-8 EX-4.3 2 1992 STOCK OPTION PLAN 1 EXHIBIT 4.3 AMSURG CORP. 1992 STOCK OPTION PLAN 1. Purpose. The purpose of the AmSurg Corp. 1992 Stock Option Plan (the "Plan") is to advance the growth and prosperity of AmSurg Corp. (the "Company") and its subsidiaries by providing key employees with an additional incentive to contribute to the best interests of the Company. Without prejudice to other compensation programs approved from time to time by the Board of Directors (the "Board") and/or shareholders of the Company, such additional incentive is to be given key employees by means of stock options provided for under the Plan. In the discretion of the Committee hereinafter provided for and the Board, such options may be "Incentive Stock Options" within the meaning of Section 422A of the Internal Revenue Code of 1986, as amended (the "Code"), or "non-statutory" stock options. 2. Administration of the Plan. (a) The Plan shall be administered by the Board unless and until such time as the Board delegates administration to a committee pursuant to subparagraph 2(c) (the "Committee"). Upon such date as the Company has a class of equity security registered under Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Board shall administer the Plan only if all of its members are disinterested persons. For the purposes of this paragraph 2, disinterested person shall mean a person who has not at any time within one year prior to the date in question participated in the Plan or any other plan of the Company or any of its subsidiaries entitling the participants therein to acquire stock or stock options of the Company; provided, however, that a disinterested person may participate in a plan that meets any of the exceptions contained in Rule 16b-3(c)(2) as promulgated under the Exchange Act, as it may be amended from time to time. (b) The Board shall have the power, subject to, and within, the limits of the express provisions of the Plan: (i) To determine from time to time which of the eligible persons shall be granted options under the Plan, the term of each granted option, the time or times during the term of each option within which all or portions of each option may be exercised, whether the options granted shall be Incentive Stock Options or non-statutory options, and the number of shares for which each option shall be granted. (ii) To construe and interpret the Plan and options granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, shall generally determine all questions of policy and expediency that may arise and may correct any defect, omission or inconsistency in the Plan or in any option agreement in a manner and to the extent it shall deem necessary or expedient to make the Plan fully effective. 2 (iii) To prescribe the terms and provisions of each option granted (which need not be identical). (iv) To amend the Plan as provided herein. (v) Generally, to exercise such powers and to perform such acts as are deemed necessary or expedient to promote the best interests of the Company. (c) The Board, by resolution, may delegate administration of the Plan (including, without limitation, the Board's powers under subparagraph 2(b)) to a Committee composed of not less than two (2) members, which committee, upon such time as the Company has a class of equity security registered under Section 12 of the Exchange Act, will be constituted so as to permit the Plan to comply with Rule 16b-3 thereunder. If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the powers theretofore possessed by the Board, subject, however, to such constraints, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. The Board at any time may remove members from or add members to the Committee or may abolish the Committee and revest in the Board the administration of the Plan. Vacancies on the Committee, howsoever caused, shall be filled by the Board. (d) The interpretation and construction by the Board of any provisions of the Plan or of any option granted under it shall be final, and the interpretation or construction by any Committee appointed pursuant to subparagraph 2(c) of any such provisions or option shall also, unless otherwise determined by the Board, be final. No member of such Committee or of the Board shall be liable for any action or determination made in good faith with respect to the Plan or any option granted under it. 3. Eligible Employees. The Board or the Committee shall determine from time to time those officers and key employees of the Company and its subsidiaries to whom options shall be granted and, pursuant to the provisions of the Plan, the amount thereof and the terms and conditions, including requirements as to continued employment by the participant, upon which such options or rights are granted and are exercisable. Directors of the Company who are not also employees of the Company or its subsidiaries shall not be eligible to participate in the Plan. 4. The Stock. The stock subject to the options and other provisions of the Plan shall be shares of the Company's authorized and unissued Common Stock, no par value, or reacquired Common Stock held in the treasury. The total number of shares of the Company's Common Stock that may be transferred pursuant to the exercise of stock options under the Plan shall not exceed in the aggregate 1,532,000 shares. Shares subject to options which terminate or expire prior to exercise shall be available for further option hereunder. Each option granted under this Plan shall be subject to the requirement that if at any time the Board or the Committee shall determine that the listing, registration or qualification of the shares subject thereto upon any securities exchange or under any state or Federal law, or the 2 3 consent or approval of any governmental regulatory body is necessary or desirable in connection with the issue or transfer of shares subject thereto, no such option may be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board or the Committee. If required at any time by the Board or the Committee, an option may not be exercised until the optionee has delivered an investment letter to the Company containing the representations that all shares being purchased are being acquired for investment and not with a view to, or for resale in connection with, any distribution of such shares. 5. Terms and Conditions of Options. All stock options granted pursuant to the Plan shall be in such form as the Board or the Committee shall from time to time determine, shall clearly indicate whether such option is an Incentive Stock Option or a non-statutory stock option, and shall be subject to the following terms and conditions: (a) Option Price. The price per share for Common Stock under each option granted under the Plan shall be determined and fixed by the Board or the Committee but, in the case of Incentive Stock Options, shall in no event be less than 100% of the fair market value of the Common Stock on the date of grant of such option, and, in the case of non-statutory stock options, shall in no event be less than 85% of the fair market value of the Common Stock on the date of grant of such option. In the case of the grant of an Incentive Stock Option to an individual who, at the time of the grant, owns more than 10% of the total combined voting power of all classes of stock of the Company, such price per share shall not be less than 110% of the fair market value of the Common Stock on the date of grant of the option. (b) Option Period. The period during which an option may be exercised shall be determined by the Board or the Committee, provided, however, that in no event shall an Incentive Stock Option be exercisable after the expiration of 10 years from the date such option was granted; and provided further that in the case of the grant of an Incentive Stock Option to an individual who, at the time of the grant, owns more than 10% of the total combined voting power of all classes of stock of the Company, in no event shall such option be exercisable more than five years from the date of the grant. Options may be made exercisable in installments, and such options or installments thereof may be exercised in part from time to time after they become exercisable. The maturity of any installment or installments may be accelerated at the discretion of the Board or the Committee. In the event that a participant shall cease to be employed by the Company or one of its subsidiaries for any reason other than his death, all options held by him pursuant to the Plan and not previously exercised at the date of such termination shall terminate immediately and become void and of no effect; provided, however, that the Board or the Committee shall have the right to extend the exercise period not in excess of three months following the date of termination of the participant's employment, subject to the further condition, however, that no Incentive Stock Option shall be exercisable after the expiration of 10 years from the date it is granted, and subject to the further condition that in the case of the grant of an Incentive Stock Option to an individual who, at the time of the grant, owns more than 10% of the total combined voting 3 4 power of all classes of stock of the Company, in no event shall such option be exercisable more than five years from the date of the grant. Notwithstanding the foregoing, if the termination is due to disability, or to retirement with the consent of the Company, such disabled or retiring participant shall have the right to exercise his options which have not previously been exercised at the date of such termination of employment at any time within three months after such termination, subject to the condition that no Incentive Stock Option shall be exercisable after the expiration of 10 years from the date it is granted, and subject to the further condition that in the case of the grant of an Incentive Stock Option to an individual who, at the time of the grant, owns more than 10% of the total combined voting power of all classes of stock of the Company, in no event shall such option be exercisable more than five years from the date of the grant. Whether termination of employment is due to disability or is to be considered retirement with the consent of the Company shall be determined by the Board or the Committee, which determination shall be final and conclusive. If the participant should die while in the employ of the Company or a subsidiary of the Company or within a period of three months after the termination of his employment by retirement and shall not have fully exercised options granted under the Plan, such options may be exercised in whole or in part at any time within 12 months after the participant's death by the executors or administrators of the participant's estate or by any person or persons who shall have acquired the options directly from the participant by bequest or inheritance, subject to the condition that no Incentive Stock Option shall be exercisable after the expiration of 10 years from the date it is granted, and subject to the further condition that in the case of the grant of an Incentive Stock Option to an individual who, at the time of the grant, owns more than 10% of the total combined voting power of all classes of stock of the Company, in no event shall such option be exercisable more than five years from the date of the grant. The exercise of an option granted under the Plan shall not affect the optionee's right or ability to exercise any other option granted under the Plan or any other stock option plan of the Company or its subsidiaries. (c) Limitations on Grants. No Incentive Stock Option shall be granted to any participant under the Plan if the aggregate fair market value (as of the date the option is granted) of the Common Stock with respect to which Incentive Stock Options are exercisable for the first time by such participant during any calendar year (under all such plans of the Company and any subsidiary of the Company) exceeds $100,000. (d) Limitations on Disposition. To obtain the tax benefits associated with Incentive Stock Options, the optionee must make no disposition of shares acquired pursuant to the exercise of an Incentive Stock Option within two years from the granting of such Incentive Stock Option or within one year from the date of the exercise of such Incentive Stock Option. (e) Holding Period. Upon such time as the Company has a class of equity security registered under Section 12 of the Exchange Act, in order for the grant of an option under the Plan to be exempt from Section 16(b) of the Exchange Act, the optionee must make 4 5 no disposition of the option (other than upon exercise) or the shares acquired pursuant to the exercise of the option, for a period of six months after the date of grant of such option. 6. Payment for Stock. Payment for shares subject to options granted under the Plan shall be made by the optionee in the form of cash or by means of unrestricted shares of the Company's Common Stock or any combination thereof. Payment shall be made upon the exercise of the option. Payment in currency or by check, bank draft, cashier's check or postal money order shall be considered payment in cash. In the event of payment in the Company's Common Stock, the shares used in payment of the purchase price shall be considered payment to the extent of their fair market value on the date of exercise of the option. 7. Non-Assignability. No option shall be transferable otherwise than by will or the laws of descent and distribution and an option is exercisable during the lifetime of the optionee only by him. 8. Adjustment Upon Changes in Stock. (a) The number of shares of Common Stock available for the granting of options under the Plan and the number of shares and price per share of Common Stock subject to outstanding options granted pursuant to the Plan may be adjusted by the Board or the Committee in an equitable manner to reflect changes in the capitalization of the Company, including, but not limited to, such changes as result from merger, consolidation, reorganization, recapitalization, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares and change in corporate structure. If any adjustment under this subparagraph 8(a) would create a fractional share of Common Stock or a right to acquire a fractional share of Common Stock, such fractional share shall be disregarded and the number of shares available under the Plan and the number covered under any options granted pursuant to the Plan shall be the next lower number of shares, rounding all fractions downward. (b) Notwithstanding the foregoing, in the event of: (1) a dissolution or liquidation of the Company; (2) a sale of all or substantially all of the assets of the Company; (3) a merger or share exchange in which the Company is not the surviving corporation; or (4) other capital reorganization in which more than fifty percent (50%) of the shares of the Company entitled to vote are exchanged, any outstanding options hereunder immediately shall be fully exercisable by an optionee. (c) Any adjustment made by the Board or the Committee under this paragraph 8 shall be conclusive and binding on all affected persons. No Incentive Stock Option granted pursuant to the Plan shall be adjusted in a manner that causes such Incentive Stock Option to fail to continue to qualify as an Incentive Stock Option within the meaning of Section 422A of the Code. 9. The Board from time to time may amend this Plan, but except as provided above with respect to dilutions or other adjustments or mergers or share exchanges, 5 6 or with the approval of the Company's shareholders, may not (a) increase the aggregate number of shares available for option hereunder, (b) change the price at which options may be granted, (c) extend the maximum period during which an option may be exercised, or (d) change the eligibility requirements for options hereunder. Rights and obligations under any option granted before amendment of the Plan shall not be altered or impaired by amendment of the Plan, except with the consent of the person to whom the option was granted. 10. Fair Market Value of Stock. Whenever pursuant to the terms of the Plan the fair market value of the Company's Common Stock is required to be determined as of a particular date, such fair market value shall equal the last sale price of the Common Stock on the principal exchange on which the Common Stock is then listed, or if the Common Stock is not then listed on any exchange, on the National Association of Securities Dealers Automated Quotation National Market System ("NMS"), or, if price quotations for the Common Stock are not available on NMS, the mean between the closing bid and asked price of the Common Stock on the National Association of Securities Dealers Automated Quotation System ("NASDAQ"), or if no bid quotation is available on NASDAQ, the fair value of such Common Stock as determined by the Board, in each case, on the business day immediately preceding the date on which the determination is made. Fair market value shall be determined in all cases without regard to any restriction other than a restriction which, by its terms, will never lapse. 11. No Rights as Shareholder. A participant in the Plan shall have no rights as a shareholder with respect to any shares covered by his option until the date of the issuance of a stock certificate to him. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights for which the record date is prior to the date such stock certificate is issued. 12. Indemnification of Committee. In addition to such other rights of indemnification as they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Company against the reasonable expenses, including attorneys' fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any option granted thereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such Committee member is liable for negligence or misconduct in the performance of his duties; provided that within 60 days after institution of any such action, suit or proceeding, the Committee member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same. 13. Termination. This Plan shall terminate on April 2, 2002, unless sooner terminated by action of the Board. No option may be granted hereunder after termination of the Plan, but such termination shall not affect the validity of any option then outstanding. 6 7 14. Shareholder Approval. The Plan shall be subject to approval by the holders of a majority of the outstanding shares of Common Stock of the Company present and voting at a meeting of shareholders, which approval must occur within the period ending 12 months after the date the Plan is adopted by the Board, provided, however, that options may be granted thereunder when all the conditions (other than shareholder approval) precedent to the granting of options under the Plan have been completed by the Company. 7 8 EXHIBIT A AMENDMENT NO. 1 TO AMSURG CORP. 1992 STOCK OPTION PLAN Pursuant to subparagraph 8(a) of the AmSurg Corp. 1992 Stock Option Plan ("1992 Plan"), the Board of Directors of AmSurg Corp. (the "Company") hereby amends the Plan so that the second sentence of paragraph 4 read as follows: "The total number of shares of the Company's Common Stock that may be issued pursuant to the exercise of stock options under the Plan shall not exceed in the aggregate 2,032,000 shares." Dated: September 17, 1993 Date approved by the Company's shareholders: 10/20/93 --------------- 9 EXHIBIT A AMENDMENT NO. 2 TO AMSURG CORP. 1992 STOCK OPTION PLAN Pursuant to subparagraph 8(a) of the AmSurg Corp. 1992 Stock Option Plan ("Plan"), the Board of Directors of AmSurg Corp. (the "Company") hereby amends the Plan so that the second sentence of paragraph 4 read as follows: "The total number of shares of the Company's Common Stock that may be issued pursuant to the exercise of stock options under the Plan shall not exceed in the aggregate 2,782,000 shares." Dated: February 17, 1995 Date approved by the Company's shareholders: 4/21/95 --------------- EX-5 3 OPINION OF BASS, BERRY & SIMS 1 EXHIBIT 5 B A S S, B E R R Y & S I M S P L C A PROFESSIONAL LIMITED LIABILITY COMPANY ATTORNEYS AT LAW 2700 FIRST AMERICAN CENTER 1700 RIVERVIEW TOWER NASHVILLE, TENNESSEE 37238-2700 POST OFFICE BOX 1509 TELEPHONE (615) 742-6200 KNOXVILLE, TENNESSEE 37901-1509 TELECOPIER (615) 742-6293 TELEPHONE (423) 521-6200 TELECOPIER (423) 521-6234 December 8, 1997 AmSurg Corp. One Burton Hills Boulevard, Suite 350 Nashville, Tennessee 37215 Re: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have acted as your counsel in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") relating to the Company's 1992 Stock Option Plan and 1997 Stock Incentive Plan (the "Plans") filed by you with the Securities and Exchange Commission covering 1,577,333 shares (the "Shares") of Class A common stock, no par value per share, issuable pursuant to the Plans. In so acting, we have examined and relied upon such records, documents, and other instruments as in our judgment are necessary or appropriate in order to express the opinions hereinafter set forth and have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based on the foregoing, we are of the opinion that the Shares, when issued pursuant to and in accordance with the Plans, will be validly issued, fully paid, and nonassessable. We hereby consent to the use of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ BASS, BERRY & SIMS PLC EX-23.2 4 CONSENT OF DELOITTE & TOUCHE 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of AmSurg Corp. on Form S-8 of our reports dated February 21, 1997 with respect to AmSurg Corp., January 8, 1997 with respect to Endoscopy Center of Ocala, Inc. and October 7, 1997 with respect to The Endoscopy Center, Inc., appearing in the Form 10 of AmSurg Corp. as amended on November 3, 1997. /s/ DELOITTE & TOUCHE Nashville, Tennessee December 8, 1997 -----END PRIVACY-ENHANCED MESSAGE-----