-----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, G8nsKJIlySxuaXRWnleNxWY/DmMVDFmYr+VF8EBFUoyIaSOPD1LlSE5NBDJhDdQp yWDsBZIi1G1CvY2c0gyPXQ== 0000950144-01-504455.txt : 20010716 0000950144-01-504455.hdr.sgml : 20010716 ACCESSION NUMBER: 0000950144-01-504455 CONFORMED SUBMISSION TYPE: 10-12G/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010713 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMSURG CORP CENTRAL INDEX KEY: 0000895930 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-OFFICES & CLINICS OF DOCTORS OF MEDICINE [8011] IRS NUMBER: 621493316 STATE OF INCORPORATION: TN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-12G/A SEC ACT: SEC FILE NUMBER: 000-22217 FILM NUMBER: 1680574 BUSINESS ADDRESS: STREET 1: 20 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 10-12G/A 1 g70484a4e10-12ga.txt AMSURG CORP. 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 13, 2001 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10/A AMENDMENT NO. 4 POST-EFFECTIVE AMENDMENT TO GENERAL FORM FOR REGISTRATION OF SECURITIES PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934 AMSURG CORP. - -------------------------------------------------------------------------------- Exact Name of Registrant as Specified in its Charter TENNESSEE 62-1493316 - ------------------------------ ----------------- State or Other Jurisdiction of (I.R.S. Exmployer Incorporation or Organization Identification No.) 20 BURTON HILLS BOULEVARD, NASHVILLE, TENNESSEE 37215 - ----------------------------------------------- ----- Address of Principal Executive Offices Zip Code Registrant's telephone number, including area code: (615) 665-1283 ----------------------- Securities to be registered pursuant to Section 12(b) of the Act: Title of Each Class Name of Each Exchange on Which to be so Registered Each Class is to be Registered - ------------------- ------------------------------- - ------------------------------- -------------------------------------------- - ------------------------------- -------------------------------------------- Securities to be registered pursuant to Section 12(g) of the Act: COMMON STOCK, NO PAR VALUE (FORMERLY CLASS A COMMON STOCK, NO PAR VALUE) - -------------------------------------------------------------------------------- (Title of Class) - -------------------------------------------------------------------------------- (Title of Class This Form 10/A (Amendment No. 4) is filed to amend only the Item 11 information set forth in the Registration Statement on Form 10, as amended, filed by AmSurg Corp. (the "Company") on March 11, 1997. 2 Item 11. DESCRIPTION OF CAPITAL STOCK Item 11 is amended and restated to reflect that as of 5:00 p.m. Central Daylight Time on July 12, 2001, each share of Class A Common Stock and Class B Common Stock of AmSurg Corp. was reclassified as one share of common stock under AmSurg's Second Amended and Restated Charter, which was approved by AmSurg's shareholders on July 11, 2001. AUTHORIZED CAPITAL STOCK As of July 12, 2001, under its Second Amended and Restated Charter, AmSurg is authorized to issue 39,800,000 shares of common stock, no par value, and 5,000,000 shares of preferred stock, no par value. As of July 12, 2001, 19,893,333 shares of our common stock are issued and outstanding. There are no shares of preferred stock outstanding. As of July 12, 2001, we believe that there are approximately 139 holders of record and 3,800 beneficial owners of our common stock. As of July 11, 2001, stock options for the purchase of 1,593,044 shares of our common stock are outstanding, of which options to purchase 821,751 shares of our common stock having an average exercise price of $7.74 per share are exercisable as of July 12, 2001. The options granted generally will vest in equal annual installments over four years, and will expire 10 years from the date of grant. In the event of certain fundamental changes to AmSurg (including liquidation, dissolution, merger, reorganization or sale of all or substantially all of the assets of AmSurg), the stock options will immediately vest and be fully exercisable by the optionees. The following summary of certain terms of our capital stock describes briefly the material provisions of AmSurg's charter and bylaws, and applicable provisions of Tennessee corporate law. COMMON STOCK. The holders of our common stock are entitled to one vote per share on all matters to be submitted to a vote of the shareholders and are not entitled to cumulative voting in the election of directors. Subject to prior dividend rights and sinking fund or redemption or purchase rights which may be applicable to any outstanding preferred stock, the holders of our common stock are entitled to share ratably in such dividends, if any, as may be declared from time to time by the Board of Directors in its discretion out of funds legally available therefor. The holders of our common stock are entitled to share ratably in any assets remaining after satisfaction of all prior claims upon liquidation of AmSurg, including prior claims of any outstanding preferred stock.] The charter does not give holders of our common stock any preemptive or other subscription rights, and our common stock is not redeemable at the option of the holders, does not have any conversion rights, and is not subject to call. The rights, preferences and privileges of holders of our common stock are subject to, and may be adversely affected by, the rights of holders of any other series of preferred stock that AmSurg may designate and issue in the future. DIVIDEND POLICY. We have never declared a cash dividend on the shares of common stock and do not currently intend to declare or pay a cash dividend on the shares of common stock. In addition, the payment of cash dividends in the future will depend on AmSurg's earnings, financial condition, capital needs and other factors deemed relevant by the Board of Directors, including corporate law restrictions on the availability of capital for the payment of dividends, the rights of holders of any series of preferred stock that may hereafter be issued and the limitations, if any, on the payment of dividends under any documents relating to equity investments, then-existing credit facilities or other indebtedness. The terms of our credit facility prohibit AmSurg from declaring or paying any dividend to any person other than itself or a subsidiary. It is the current intention of the Board of Directors to retain earnings, if any, in order to finance the operations and expansion of our business. PREFERRED STOCK. AmSurg is authorized to issue 5,000,000 shares of undesignated preferred stock, no par value. The authorized preferred stock may be issued from time to time in one or more designated series or classes. Subject to the provisions of the charter and limitations prescribed by law, the Board of Directors, without further action or vote by the shareholders, is authorized to establish the voting, dividend, redemption, conversion, liquidation, and other relative provisions in a particular series or class. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, adversely affect the voting power of the holders of common stock and, under certain circumstances, make it more difficult for a third party to acquire, or discourage a third party from acquiring, a majority of the outstanding voting stock of AmSurg. We have no present intention to issue any series or class of preferred stock. 2 3 SHAREHOLDER RIGHTS PLAN. On November 19, 1999 we adopted a rights agreement (commonly known as a "poison pill"). Under the rights agreement, we issued one right for each share of Class A and Class B Common Stock that were outstanding on December 16, 1999. In addition, one right will automatically attach to each share of common stock we issued between December 16, 1999 and the time that the rights become exercisable. When exercised, each right will entitle its holder to purchase one one-hundredth of a share (a "unit") of Series C Junior Participating Preferred Stock, no par value per share (the "Series C Preferred Stock"), at an exercise price of $48.00 per unit, subject to adjustment. The rights initially will not be exercisable. Instead, the rights will be attached to and trade with all shares of common stock outstanding as of, and issued after, December 16, 1999. The rights will separate from the common stock and will become exercisable upon the earlier of the following events (the "distribution date"): o The tenth business day following the first public announcement that a person or entity has acquired beneficial ownership of 15% or more of our common stock then outstanding (an "Acquiring Person"); or o The tenth business day following the commencement of a tender offer or exchange offer that could result in a person or entity becoming the beneficial owner of 15% or more of our common stock then outstanding. The rights will expire at the close of business on December 9, 2009 unless we redeem or exchange the rights as described below. After public announcement that a person has become an Acquiring Person, each holder of a right will have the right to receive upon exercise of the rights that number of shares of common stock having a value of two times the then current purchase price of the right. At any time after a person becomes an Acquiring Person, AmSurg may exchange all or part of the outstanding and exercisable rights for shares of common stock at an exchange ratio specified in the rights agreement. AmSurg generally may not make an exchange after any person becomes the beneficial owner of 50% or more of our common stock. Under certain circumstances, each holder of a right will be entitled to receive, if the holder exercises a right, common stock of the acquiring company having a value equal to two times the then current purchase price of the right. This feature, commonly called the "flip-over" of the rights, will be available if certain merger or sale transactions occur after it is publicly announced that a person has become an Acquiring Person. Until a right is exercised, the holder will have no rights as a shareholder as a result of the rights. Shareholders may, depending upon the circumstances, recognize taxable income in the event that the rights become exercisable for units of Series C Preferred Stock, shares of common stock, other consideration or for common stock of an acquiring company. The rights may have certain anti-takeover effects. The rights will cause substantial dilution to a person or group that attempts to acquire us on terms not approved by a majority of our board of directors unless the offer is conditioned on a substantial number of rights being acquired. However, the rights should not interfere with any merger or other business combination approved by our board of directors since the rights may be redeemed by us at $0.001 per right at any time on or prior to the tenth day following the announcement that someone has become an Acquiring Person. Thus, the rights are intended to encourage persons who may seek to acquire control of us to negotiate with our board of directors. However, the effect of the rights may be to discourage a third party from making a partial tender offer or otherwise attempting to obtain a substantial equity position or to obtain control of AmSurg. To the extent any potential acquirers are deterred by the rights, the rights may have the effect of preserving incumbent management in office. TRANSFER AGENT AND REGISTRAR SunTrust Bank, Atlanta, is the transfer agent and registrar for the common stock. REGISTRATION AGREEMENT Certain private investors entered into a registration agreement dated April 2, 1992, as amended. Pursuant to the registration agreement, the holders of at least 66 2/3% of certain of the registrable shares under the registration 3 4 agreement, may by written notice demand registration on Form S-1 or any similar long-form registration under the Securities Act of up to all of the registrable shares owned by such holders. These holders of registrable shares are entitled to only one such long-form demand registration. In connection with the equity financing of preferred stock in November 1996, the purchasers of preferred stock became parties to the Registration Agreement. As a result, shares of Class A Common Stock (now common stock) issued upon conversion of the Series B Preferred Stock are registrable shares, and as such, have certain registration rights. The holders of the shares of Class A Common Stock (now common stock) issued upon conversion of the Series B Preferred Stock are entitled to two demand registrations. In addition, any holder or holders of registrable shares may demand registration of any or all of their registrable shares on or after the date upon which AmSurg has become entitled as a registrant to use Form S-3 or any similar short-form registration. There is no limit on the number of short-form demand registrations, so long as the aggregate offering value of the registrable shares requested to be registered is at least $1,000,000. The shareholders are also entitled to unlimited "piggyback" registration rights whenever AmSurg proposes to register any of its securities under the Securities Act (other than on Forms S-4 or S-8 or any successor forms), until June 10, 2003. These "piggyback" registration rights entitle these shareholders to include any of their registrable shares in any registration statement which AmSurg proposes to file, subject to certain limitations generally imposed by the managing underwriter regarding the number of shares to be included in the offering. CERTAIN PROVISIONS OF OUR CHARTER, BYLAWS, AND TENNESSEE LAW GENERAL. The provisions of the charter, the bylaws, and Tennessee statutory law described in this section may delay or make more difficult acquisitions or changes of control of AmSurg that are not approved by the Board of Directors. Such provisions have been implemented to enable AmSurg, particularly (but not exclusively) in the initial years of its existence as an independent, publicly-owned company, to develop its business in a manner that will foster its long-term growth without the disruption of the threat of a takeover not deemed by the Board of Directors to be in the best interests of AmSurg and its shareholders. CLASSIFIED BOARD OF DIRECTORS. The bylaws provide that the number of directors shall be no fewer than three or more than 12, with the exact number to be established by the Board of Directors and subject to change from time to time as determined by the Board of Directors. The charter provides for the classification of the Board of Directors. Under the terms of the charter, the members of the Board of Directors are divided into three classes, serving staggered three-year terms. As a result, one-third of the Board of Directors will be elected each year. This provision could prevent a party who acquires control of a majority of the outstanding voting stock from obtaining control of the Board of Directors until the second annual shareholders' meeting following the date the acquiror obtains the controlling stock interest. This provision may have the effect of discouraging a potential acquiror from making a tender offer or otherwise attempting to obtain control of AmSurg, and could also increase the likelihood that incumbent directors will retain their positions. The charter provides that directors may be removed only for "cause" and only by the affirmative vote of the holders of a majority of the voting power of all the shares of AmSurg's capital stock then entitled to vote in the election of directors, voting together as a single class, unless the vote of a special voting group is otherwise required by law. "Cause" is defined in the charter as: (i) a felony conviction of a director or the failure of a director to contest prosecution for a felony; (ii) conviction of a crime involving moral turpitude; or (iii) willful and continued misconduct or gross negligence by a director in the performance of his or her duties as a director. The charter also provides that in order to call a special meeting of shareholders, written demands of the holders of at least 15% of the voting power of each class of the common stock must be received. These provisions, in conjunction with the provision of the bylaws authorizing the Board of Directors to fill vacant directorships, may prevent shareholders from removing incumbent directors without cause and filling the resulting vacancies with their own nominees. ADVANCE NOTICE FOR SHAREHOLDER PROPOSALS OR MAKING NOMINATIONS AT MEETINGS. The bylaws establish an advance notice procedure for shareholder proposals to be brought before a meeting of shareholders of AmSurg and for nominations by shareholders of candidates for election as directors at an annual meeting or a special meeting at which directors are to be elected. Subject to any other applicable requirements, only such business may be conducted at a meeting of shareholders as has been brought before the meeting by, or at the direction of, the Board of Directors, or by a shareholder who has given to the Secretary timely written notice in proper form, of the shareholder's intention to bring that business before the meeting. The presiding officer at such meeting has the authority to make such determinations. Only persons who are selected and recommended by the Board of Directors, or the committee of the Board of Directors designated to make nominations, or who are nominated by a shareholder 4 5 who has given timely written notice, in proper form, to the Secretary prior to a meeting at which directors are to be elected will be eligible for election as directors. To be timely, notice of nominations or other business to be brought before any meeting must be received by the Secretary not later than 120 days in advance of the mailing date of AmSurg's proxy statement for the previous year's annual meeting or, in the case of special meetings, at the close of business on the tenth day following the date on which notice of such meeting is first given to shareholders. The notice of any shareholder proposal or nomination for election as director must set forth various information required under the bylaws. The person submitting the notice of nomination and any person acting in concert with such person must provide, among other things, the name and address under which they appear on AmSurg's books (if they so appear) and the class and number of shares of AmSurg's capital stock that are beneficially owned by them. AMENDMENT OF THE BYLAWS AND CHARTER. Except with respect to amendments to the bylaws or charter relating to the classified structure of the Board of Directors which are required to be approved by the affirmative vote of two-thirds of the voting power of the shares entitled to vote in the election of directors, the bylaws provide that a majority of the members of the Board of Directors who are present at any regular or special meeting or the holders of a majority of the voting power of all shares of AmSurg's capital stock represented at a regular or special meeting have the power to amend, alter, change, repeal, or restate the bylaws. Except as may be set forth in resolutions providing for any class or series of preferred stock, any proposal to amend, alter, change, or repeal any provision of the charter requires approval by the affirmative vote of both a majority of the members of the Board of Directors then in office and the holders of a majority of the voting power of all of the shares of AmSurg's capital stock entitled to vote on the amendments, with shareholders entitled to dissenters' rights as a result of the charter amendment voting together as a single class. Shareholders entitled to dissenters' rights as a result of a charter amendment are those whose rights would be materially and adversely affected because the amendment (i) alters or abolishes a preferential right of the shares; (ii) creates, alters, or abolishes a right in respect of redemption; (iii) alters or abolishes a preemptive right; (iv) excludes or limits the right of the shares to vote on any matter, or to cumulate votes other than a limitation by dilution through issuance of shares or other securities with similar voting rights; or (v) reduces the number of shares held by such holder to a fraction if the fractional share is to be acquired for cash. In general, however, no shareholder is entitled to dissenters' rights if the security he or she holds is listed on a national securities exchange or the Nasdaq National Market. TENNESSEE LAW. The Tennessee Business Combination Act provides, among other things, that any corporation to which the Combination Act applies, including AmSurg, shall not engage in any "business combination" with an "interested shareholder" for a period of five years following the date that such shareholder became an interested shareholder unless prior to such date the board of directors of the corporation approved either the business combination or the transaction which resulted in the shareholder becoming an interested shareholder. The Combination Act defines "business combination," generally, to mean any: (i) merger or consolidation; (ii) share exchange; (iii) sale, lease, exchange, mortgage, pledge, or other transfer (in one transaction or a series of transactions) of assets representing 10% or more of (A) the market value of consolidated assets, (B) the market value of the corporation's outstanding shares or (C) the corporation's consolidated net income; (iv) issuance or transfer of shares from the corporation to the interested shareholder; (v) plan of liquidation; (vi) transaction in which the interested shareholder's proportionate share of the outstanding shares of any class of securities is increased; or (vii) financing arrangements pursuant to which the interested shareholder, directly or indirectly, receives a benefit except proportionately as a shareholder. The Combination Act defines "interested shareholder," generally, to mean any person who is the beneficial owner, either directly or indirectly, of 10% or more of any class or series of the outstanding voting stock, or any affiliate or associate of the corporation who has been the beneficial owner, either directly or indirectly, of 10% or more of the voting power of any class or series of the corporation's stock at any time within the five-year period preceding the date in question. Consummation of a business combination that is subject to the five-year moratorium is permitted after such period if the 5 6 transaction (i) complies with all applicable charter and bylaw requirements and applicable Tennessee law and (ii) is approved by at least two-thirds of the outstanding voting stock not beneficially owned by the interested shareholder, or when the transaction meets certain fair price criteria. The fair price criteria include, among others, the requirement that the per share consideration received in any such business combination by each of the shareholders is equal to the highest of (i) the highest per share price paid by the interested shareholder during the preceding five-year period for shares of the same class or series plus interest thereon from such date at a treasury bill rate less the aggregate amount of any cash dividends paid and the market value of any dividends paid other than in cash since such earliest date, up to the amount of such interest, (ii) the highest preferential amount, if any, such class or series is entitled to receive on liquidation, or (iii) the market value of the shares on either the date the business combination is announced or the date when the interested shareholder reaches the 10% threshold, whichever is higher, plus interest thereon less dividends as noted above. The Tennessee Control Share Acquisition Act prohibits certain shareholders from exercising in excess of 20% of the voting power in a corporation acquired in a "control share acquisition," as defined in the Acquisition Act, unless such voting rights have been previously approved by the disinterested shareholders of the corporation. AmSurg has not elected to make the Acquisition Act applicable to it. No assurance can be given that such election, which must be expressed in a charter or bylaw amendment, will or will not be made in the future. The Tennessee Greenmail Act prohibits AmSurg from purchasing or agreeing to purchase any of its securities, at a price in excess of fair market value, from a holder of 3% or more of any class of such securities who has beneficially owned such securities for less than two years, unless such purchase has been approved by the affirmative vote of a majority of the outstanding shares of each class of voting stock issued by AmSurg or AmSurg makes an offer of at least equal value per share to all holders of shares of such class. The effect of the Greenmail Act may be to render more difficult a change of control of AmSurg. 6 7 SIGNATURE Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized. AMSURG CORP. By: /s/ Claire M. Gulmi -------------------------------------------- Claire M. Gulmi Senior Vice President, Chief Financial Officer, and Secretary Dated: July 13, 2001 7 8 INDEX TO EXHIBITS EXHIBIT DESCRIPTION - ------- ----------- 3.1 -- Second Amended and Restated Charter of AmSurg Corp. 4.1 -- Specimen certificate representing the common stock EX-3.1 2 g70484a4ex3-1.txt SECOND AMENDED AND RESTATED CHARTER 1 EXHIBIT 3.1 CERTIFICATE OF SECOND AMENDED AND RESTATED CHARTER OF AMSURG CORP. AmSurg Corp. (the "Corporation"), a corporation organized under the Tennessee Business Corporation Act, does hereby certify pursuant to Sections 48-20-107 and 48-20-106 of the Tennessee Business Corporation Act: 1. The name of the Corporation is AmSurg Corp. 2. The Amended and Restated Charter of the Corporation is hereby amended and restated by deleting all articles in the Amended and Restated Charter and by substituting in lieu thereof new articles, which are set forth in the Second Amended and Restated Charter attached to this Certificate. 3. The Second Amended and Restated Charter contains amendments requiring shareholder approval in Article 7, the effect of which is to amend the authorized shares of stock, eliminate the Class A Common Stock and Class B Common Stock, and authorize shares of common stock and to eliminate the designation of Series A Redeemable Preferred Stock and Series B Convertible Preferred Stock, which are no longer outstanding. The shareholders also duly approved a plan of reclassification of each share of Class A Common Stock and Class B Common Stock as one share of common stock, as of the effective time of the Second Amended and Restated Charter. The Second Amended and Restated Charter and the plan of reclassification were duly approved by the shareholders of the Corporation on July 11, 2001 in accordance with the provisions of Section 48-20-103 of the Tennessee Business Corporation Act. 4. The effective time of the Second Amended and Restated Charter shall be 5:00 p.m. Central Daylight Time on the date of filing with the Secretary of State of the State of Tennessee. 5. On July 11, 2001, the shareholders of the Corporation approved a plan of reclassification of each share of the Corporation's Class A Common Stock and Class B Common Stock as one share of common stock, as of the effective time of the Second Amended and Restated Charter. Therefore, upon the effective time, each outstanding share of Class A Common Stock and Class B Common Stock of the Corporation shall be reclassified as one share of common stock under the Second Amended and Restated Charter, registered on the stock transfer records of the Corporation. Each certificate representing shares of Class A Common Stock or Class B Common Stock of the Corporation issued prior to the effective time of this Second Amended and Restated Charter will be deemed to represent the same number of shares of common stock upon the effective time. In addition, upon the effective time, any options, warrants or rights to acquire shares of Class A Common Stock or Class B Common Stock shall become options, warrants or rights to acquire the same number of shares of common stock under the Second Amended and Restated Charter. 6. The Charter of the Corporation, as amended and restated, shall, at the effective time of this Second Amended and Restated Charter, read as follows: 2 SECOND AMENDED AND RESTATED CHARTER OF AMSURG CORP. Pursuant to the provisions of Section 48-20-107 of the Tennessee Business Corporation Act, the undersigned corporation hereby amends and restates its Charter to supersede the original Charter and any and all prior amendments thereto as follows: 1. The name of the corporation is AmSurg Corp. (the "Corporation"). 2. The Corporation is for profit. 3. The duration of the Corporation is perpetual. 4. The street address and zip code of the Corporation's principal office in Tennessee shall be: 20 Burton Hills Boulevard Nashville, Tennessee 37215 Davidson County 5. (a) The name of the Corporation's registered agent is Claire M. Gulmi. (b) The street address, zip code, and county of the Corporation's registered office and registered agent in Tennessee shall be: 20 Burton Hills Boulevard Nashville, Tennessee 37215 Davidson County 6. The Corporation is organized to do any and all things and to exercise any and all powers, rights, and privileges that a corporation may now or hereafter be organized to do, or to exercise, under the Tennessee Business Corporation Act, as amended. 7. The aggregate number of shares of capital stock the Corporation is authorized to issue is 44,800,000 shares, of which 39,800,000 shares shall be common stock, no par value (the "Common Stock"), and 5,000,000 shares shall be preferred stock, no par value (the "Preferred Stock"), of which 398,000 shares are designated as Series C Junior Participating Preferred Stock. The Board of Directors may determine, in whole or in part, the preferences, limitations, and relative rights of any class of shares before the issuance of any shares of that class or one or more series within a class before the issuance of any shares within that series. 1 3 The preferences, limitations, and relative rights of the above designated classes of stock shall be as follows: (1) Common Stock. There shall be one class of Common Stock. Set forth below in this Section (1) of Article 7 is a statement of the designations and the powers, preferences and rights, and the qualifications, limitations or restrictions thereof. All subsection references contained herein shall be to this Section (1) of Article 7. (a) Voting. Except as required by law and subject to any voting rights provided to holders of Series C Preferred Stock by this Charter, at every meeting of shareholders of the Corporation, every holder of Common Stock shall be entitled to one vote, in person or by proxy, for each share of Common Stock standing in such holder's name on the stock transfer records of the Corporation. (b) Distribution of Assets. If the Corporation shall be liquidated, dissolved or wound up, whether voluntarily or involuntarily, the holders of the Common Stock shall be entitled to an equal amount of net assets for each share of Common Stock. A merger or consolidation of the Corporation with or into any other corporation or sale or conveyance of all or any part of the assets of the Corporation (which shall not in fact result in the liquidation of the Corporation and the distribution of assets to shareholders) shall not be deemed to be a voluntary or involuntary liquidation or dissolution or winding up of the Corporation within the meaning of this Subsection (b). (c) Dividends; Distributions. Holders of Common Stock shall be entitled to receive, on an equal basis, such dividends, payable in cash or otherwise, as may be declared thereon by the Board of Directors from time to time out of the assets or funds of the Corporation legally available therefor. (d) Amendment or Modification. None of the powers, preferences and relative rights of the Common Stock as provided herein shall be amended in any manner which would alter or change the powers, preferences and relative rights of the holders of Common Stock so as to adversely affect them without being approved by the holders of the Common Stock. (2) Series C Junior Participating Preferred Stock. Pursuant to the authority vested in the Board of Directors in accordance with the provisions of this Article 7 of the Charter, the Board of Directors does hereby create, authorize and provide for the issuance of the Series C Junior Participating Preferred Stock out of the class of 5,000,000 shares of Preferred Stock, having the voting powers, designation, relative, participating, optional and other special rights, preferences, and qualifications, limitations and restrictions thereof that are set forth as follows: (a) Designation and Amount. The shares of such series shall be designated as Series C Junior Participating Preferred Stock ("Series C Preferred Stock") and the number of shares constituting such series shall be 398,000. Such number of shares may be adjusted by appropriate action of the Board of Directors. (b) Dividends and Distributions. Subject to the prior and superior rights of the holders of any shares of any other series of Preferred Stock or any other shares of Preferred Stock of the Corporation ranking prior and superior to the shares of Series C Preferred Stock with respect to dividends, each holder of one one-hundredth (1/100) of a share (a "Unit") of Series C Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors out of funds legally available for that purpose, dividends at the same rate as dividends are paid with respect to the Common Stock. In the event that the Corporation shall at any time after November 19, 1999 (the "Rights Dividend Declaration Date") (i) declare or pay any dividend on outstanding shares of Common Stock payable in shares of Common Stock; (ii) subdivide outstanding shares of Common Stock; or (iii) combine outstanding shares of Common Stock into a smaller number of shares, then in each such case the amount to which the holder of a Unit of Series C Preferred Stock was entitled immediately prior to such event pursuant to the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event. 2 4 (c) Voting Rights. The holders of Units of Series C Preferred Stock shall have the following voting rights: (i) Subject to the provision for adjustment hereinafter set forth, each Unit of Series C Preferred Stock shall entitle the holder thereof to one vote on all matters submitted to a vote of the shareholders of the Corporation. In the event the Corporation shall at any time after the Rights Dividend Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock; (ii) subdivide outstanding shares of Common Stock; or (iii) combine the outstanding shares of Common Stock into a smaller number of shares, then in each such case the number of votes per Unit to which holders of Units of Series C Preferred Stock were entitled immediately prior to such event shall be adjusted by multiplying such number by a fraction the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event. (ii) Except as otherwise provided herein or by law, the holders of Units of Series C Preferred Stock and the holders of shares of Common Stock shall vote together as one class on all matters submitted to a vote of shareholders of the Corporation. (iii) Except as set forth herein or required by law, holders of Units of Series C Preferred Stock shall have no special voting rights and their consent shall not be required (except to the extent they are entitled to vote with holders of shares of Common Stock as set forth herein) for the taking of any corporate action. (d) Reacquired Shares. Any Units of Series C Preferred Stock purchased or otherwise acquired by the Corporation in any manner whatsoever shall be retired and cancelled promptly after the acquisition thereof. All such Units shall, upon their cancellation, become authorized but unissued Units of Series C Preferred Stock to be created by resolution or resolutions of the Board of Directors, subject to the conditions and restrictions on issuance set forth herein. (e) Liquidation. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of Units of Series C Preferred Stock shall be entitled to share in any assets remaining ratably with the holders of the Common Stock. In the event the Corporation shall at any time after the Rights Dividend Declaration Date (i) increase by way of stock split or similar transaction the number of outstanding shares of Common Stock; (ii) subdivide the outstanding shares of Common Stock; or (iii) combine the outstanding shares of Common Stock into a smaller number of shares, then in each such case the aggregate amount to which holders of Units of Series C Preferred Stock were entitled prior to such event shall be adjusted by multiplying such amount by a fraction, the numerator of which shall be the number of shares of Common Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event. (f) Share Exchange, Merger, Etc. In case the Corporation shall enter into any share exchange, merger, combination or other transaction in which the shares of Common Stock are exchanged for or converted into other stock or securities, cash and/or any other property, then in any such case Units of Series C Preferred Stock shall at the same time be similarly exchanged for or converted into an amount per Unit (subject to the provision for adjustment hereinafter set forth) equal to the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is converted or exchanged. In the event the Corporation shall at any time after the Rights Dividend Declaration Date (i) declare any dividend on outstanding shares of Common Stock payable in shares of Common Stock; (ii) subdivide outstanding shares of Common Stock; or (iii) combine outstanding shares of Common Stock into a smaller number of shares, then in each such case the amount set forth in the immediately preceding sentence with respect to the exchange or conversion of Units of Series C Preferred Stock shall be adjusted by multiplying such amount by a fraction the numerator of which 3 5 shall be the number of shares of Common Stock that are outstanding immediately after such event and the denominator of which shall be the number of shares of Common Stock that were outstanding immediately prior to such event. (g) Redemption. The Units of Series C Preferred Stock shall not be redeemable at the option of the Corporation or any holder thereof. Notwithstanding the foregoing sentence of this Section, the Corporation may acquire Units of Series C Preferred Stock in any other manner permitted by law and the Charter or Bylaws of the Corporation. (h) Ranking. The Units of Series C Preferred Stock shall rank junior to any other class or series of Preferred Stock that hereafter may be issued by the Corporation as to the payment of dividends and the distribution of assets, unless the terms of any such series or class shall provide otherwise. (i) Amendment. The Charter, including without limitation the provisions hereof, shall not hereafter be amended, either directly or indirectly, or through merger or share exchange with another corporation, in any manner that would alter or change the powers, preferences or special rights of the Series C Preferred Stock so as to affect the holders thereof adversely without the affirmative vote of the holders of a majority or more of the outstanding Units of Series C Preferred Stock, voting separately as a class. (j) Fractional Shares. The Series C Preferred Stock may be issued in Units or other fractions of a share, which Units or fractions shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of Series C Preferred Stock. 8. The shareholders of the Corporation shall not have preemptive rights. 9. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, a Board of Directors consisting of not less than three nor more than twelve directors, the exact number of Directors to be determined in the manner provided in the Bylaws of the Corporation. The Board of Directors shall be divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as possible, of one-third of the total number of Directors constituting the entire Board of Directors. Each class of Directors shall be elected for a three-year term, except at the 1997 annual meeting of shareholders, Class I Directors shall be elected for a one-year term; Class II Directors shall be elected for a two-year term; and Class III Directors shall be elected for a three-year term. If the number of Directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible, and any additional Director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case will a decrease in the number of Directors shorten the term of any incumbent Director. A Director shall hold office until the annual meeting for the year in which his term expires and until his successor shall be elected and qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. A Director may be removed from office but only for "cause" by the affirmative vote of the holders of a majority of the voting power of the shares entitled to vote for the election of Directors, considered for this purpose as one class. "Cause" shall be defined for purposes of this Article 9 as (i) a felony conviction of a Director or the failure of a Director to contest prosecution for a felony; (ii) conviction of a crime involving moral turpitude; or (iii) willful and continued misconduct or gross negligence by a Director in the performance of his duties as a director. Notwithstanding any other provisions of this Charter, the affirmative vote of holders of two-thirds of the voting power of the shares entitled to vote at an election of Directors shall be required to amend, alter, change or repeal, or to adopt any provisions as part of this Charter or as part of the Corporation's Bylaws inconsistent with the purpose and intent of this Article 9. 4 6 10. To the fullest extent permitted by the Tennessee Business Corporation Act as in effect on the date hereof and as hereafter amended from time to time, a Director of the Corporation shall not be liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director. If the Tennessee Business Corporation Act or any successor statute is amended after adoption of this provision to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Tennessee Business Corporation Act, as so amended from time to time, or such successor statute. Any repeal or modification of this Article 10 by the shareholders of the Corporation shall not affect adversely any right or protection of a Director of the Corporation existing at the time of such repeal or modification or with respect to events occurring prior to such time. 11. The Corporation shall indemnify every person who is or was a party or is or was threatened to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he or she is or was a director, medical director or officer or is or was serving at the request of the Corporation as a director, medical director, officer, employee, agent, or trustee of another corporation or of a partnership, joint venture, trust, employee benefit plan, or other enterprise, including service on a committee formed for any purpose (and, in each case, his or her heirs, executors, and administrators), against all expense, liability, and loss (including counsel fees, judgments, fines, ERISA excise taxes, penalties, and amounts paid in settlement) actually and reasonably incurred or suffered in connection with such action, suit, or proceeding, to the fullest extent permitted by applicable law, as in effect on the date hereof and as hereafter amended. Such indemnification shall include advancement of expenses prior to the final disposition of such action, suit, or proceeding, subject to the provision of any applicable statute. The indemnification and advancement of expenses provisions of this Article 11 shall not be exclusive of any other right that any person (and his or her heirs, executors, and administrators) may have or hereafter acquire under any statute, this Charter, the Corporation's Bylaws, resolution adopted by the shareholders, resolution adopted by the Board of Directors, agreement, or insurance, purchased by the Corporation or otherwise, both as to action in his or her official capacity and as to action in another capacity. The Corporation is hereby authorized to provide for indemnification and advancement of expenses through its Bylaws, resolution of shareholders, resolution of the Board of Directors, or agreement, in addition to that provided by this Charter. 12. The Bylaws of this Corporation may be amended, altered, modified, or repealed by resolution adopted by the Board of Directors, subject to any provisions of law then applicable. 13. The Corporation shall hold a special meeting of shareholders only in the event (a) of a call of the Board of Directors of the Corporation or the officers authorized to do so by the Bylaws of the Corporation, or (b) the holders of at least fifteen (15%) percent of the voting power of the Common Stock sign, date, and deliver to the Corporation's secretary one or more written demands for the meeting describing the purpose or purposes for which it is to be held. AMSURG CORP. By: /s/ Claire M. Gulmi ---------------------------------- Title: Senior Vice-President, Chief Financial Officer, Secretary ------------------------------- Dated: July 12, 2001 ------------- 5 EX-4.1 3 g70484a4ex4-1.txt SPECIMEN CERTIFICATE 1 EXHIBIT 4.1 AMSURG CORP [COMMON STOCK CERTIFICATE] COMMON STOCK COMMON STOCK INCORPORATED UNDER SEE REVERSE FOR THE LAWS OF THE CERTAIN DEFINITIONS STATE OF TENNESSEE CUSIP 03232P 40 5 THIS CERTIFIES THAT IS THE OWNER OF Fully paid and non-assessable shares of the Common Stock, no par value, of AmSurg Corp transferable on the books of the Corporation by the holder hereof in person or by Attorney upon surrender of this certificate properly endorsed. This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar. IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be signed by its duly authorized officers. Dated: /s/ Claire M. Gulmi /s/ Ken P. McDonald Secretary President and Chief Executive Officer 2 AMSURG CORP The Company will furnish the shareholder information regarding the designations, relative rights, preferences, and limitations applicable to each class and series and the variations in rights, preferences, and limitations for each class and series of stock issued by the Company (and the authority of the board of directors to determine variations for future classes or series) upon request in writing and without charge. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they are written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT -- Custodian ----------------- ---------------------- (Cust) (Minor) under Uniform Gifts to Minors Act -------------------------------------------------------- (State) Additional abbreviations may also be used though not in the above list. For value received, hereby sell, assign and transfer unto ------------- PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE - -------------------------------------- - -------------------------------------------------------------------------------- PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING ZIP CODE OF ASSIGNEE - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- Shares - ------------------------------------------------------------------------- of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint Attorney to transfer - ----------------------------------------------------------- the said stock on the books of the within-named Corporation with full power of substitution in the premises. Dated -------------------------------------------------------------------------- ---------------------------------------- NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER SIGNATURE(S) GUARANTEED: ------------------------------------------------------- THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE FINANCIAL INSTITUTION (BANK, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO SEC RULE 17Ad-15. [Legend on Side] THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO CERTAIN RIGHTS AS SET FORTH IN THE RIGHTS AGREEMENT BETWEEN AMSURG CORP. (THE "COMPANY") AND SUNTRUST BANK, ATLANTA (THE "RIGHTS AGENT") DATED DECEMBER 2, 1999, AS AMENDED AND RESTATED AS OF DECEMBER 13, 1999, AND AS FURTHER AMENDED AND RESTATED AS OF JULY 12, 2001 (THE "RIGHTS AGREEMENT"), THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE STOCK TRANSFER ADMINISTRATION OFFICE OF THE RIGHTS AGENT. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS CERTIFICATE. THE COMPANY WILL MAIL TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS AGREEMENT, AS IN EFFECT ON THE DATE OF MAILING, WITHOUT CHARGE PROMPTLY AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR. UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR ANY AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR BY ANY SUBSEQUENT HOLDER, MAY BECOME NULL AND VOID. -----END PRIVACY-ENHANCED MESSAGE-----