This document contains 16 pages. The exhibit index is located on page 7.
As filed with the Securities and Exchange Commission on November 26, 1997
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PHYMATRIX CORP.
(Exact name of issuer as specified in its charter)
Delaware 65-0617076
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
777 South Flagler Drive, Suite 1000E
West Palm Beach, Florida 33401
(Address of principal executive offices)
----------------------
CLINICAL STUDIES, LTD. 1996 EQUITY INCENTIVE PLAN
(Full title of plan)
----------------------
Abraham D. Gosman Copy to:
PhyMatrix Corp.
777 South Flagler Drive Michael J. Bohnen, Esq.
West Palm Beach, Florida 33401 Nutter, McClennen & Fish, LLP
(561) 655-3500 One International Place
(Name, address and telephone Boston, Massachusetts 02110-2699
number of agent for service) (617) 439-2000
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
Proposed Proposed
maximum maximum Amount of
Title of each class of securities to Amount being offering price aggregate offering registration
be registered registered (1) per share (2) price (2) fee (2)
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value per share 108,916 Shares $ 3.13 $ 340,907.80 $ 103.31
====================================================================================================================
</TABLE>
(1) This Registration Statement covers 108,916 shares of Common Stock under the
Clinical Studies, Ltd. 1996 Equity Incentive Plan (the "Plan"). In
addition, this Registration Statement also covers an indeterminate number
of additional shares of Common Stock which may be issued under said Plan as
a result of a stock split, stock dividend or other similar transaction.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933, as
amended, based upon the exercise price of the options granted pursuant to
the Plan.
===============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
PhyMatrix Corp. (the "Company") hereby incorporates by reference in
this Registration Statement the following documents and information heretofore
filed with the Commission:
(a) The Company's Annual Report on Form 10-K for its fiscal year ended
January 31, 1997, as amended by the Company's Annual Report on Form 10-K/A filed
with the Commission on May 30, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended April 30, 1997 and July 31, 1997;
(c) The Company's Current Reports on Form 8-K dated October 6, 1997 and
October 27, 1997, respectively; and
(d) The description of the Company's Common Stock contained under (a)
"Description of Registrant's Securities to be Registered" in the Company's
Registration Statement on Form 8-A filed with the Commission on January 19,
1996, and (b) "Description of Capital Stock" in the Company's Registration
Statement on Form S-4 (Reg. No. 333-09187), as amended to date.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of any post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Registration Statement has been delivered, upon written
or oral request of such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents, unless
such exhibits are specifically incorporated by reference into such documents).
Requests for such documents should be made to the attention of Investor
Relations, PhyMatrix Corp., 197 First Avenue, Needham, Massachusetts 02194 or by
telephone at (617) 433-1159.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereunder has been
passed upon by Nutter, McClennen & Fish, LLP. Michael J. Bohnen, a partner in
the firm of Nutter, McClennen & Fish, LLP is the Assistant Secretary of the
Company.
-2-
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law, as amended, which provides that a
corporation may indemnify any person who was or is a party to or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Delaware Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite an adjudication of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper. The Company's Certificate of
Incorporation provides that the Company shall indemnify its directors and
officers to the full extent permitted by the law of the State of Delaware.
The Company's Certificate of Incorporation provides that the Company's
directors shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except to the extent that
exculpation from liability is not permitted under the Delaware General
Corporation Law as in effect at the time such liability is determined.
The Company maintains an indemnification insurance policy covering all
directors and officers of the Company and its subsidiaries.
Item 7. Exemption from Registration.
Not Applicable.
Item 8. Exhibits.
See the Exhibit Index immediately preceding the exhibits attached
hereto.
-3-
<PAGE>
Item 9. Undertakings.
(a) The undersigned 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 of 1933;
(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; and
(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, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13 or Section 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 of 1933, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the 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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions of the Delaware General
Corporation Law and the registrant's certificate of incorporation and by-laws,
or otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the 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 a
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 Act and
will be governed by the final adjudication of such issue.
-4-
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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, on the 26th day of November 1997.
PHYMATRIX CORP.
By: /s/ Frederick R. Leathers
------------------------
Frederick R. Leathers
Chief Financial Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below on this Registration Statement hereby constitutes and appoints
Frederick R. Leathers, Michael J. Bohnen and James E. Dawson, and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, in any and all
capacities (until revoked in writing) to sign any and all amendments (including
post-effective amendments and amendments thereto) to this Registration Statement
on Form S-8 of the registrant, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary fully to all intents and purposes as he or she might or
could do in person thereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, 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 below by the following persons on behalf
of the registrant and in the capacities and on the dates indicated.
/s/ Abraham D. Gosman November 26, 1997
- --------------------------------------
Abraham D. Gosman
Chairman of the Board of Directors and
Chief Executive Officer
(Principal Executive Officer)
/s/ Frederick R. Leathers November 26, 1997
- --------------------------------------
Frederick R. Leathers
Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Robert A. Miller November 26, 1997
- --------------------------------------
Robert A. Miller
Director
-5-
<PAGE>
/s/ Joseph N. Cassese November 26, 1997
- --------------------------------------
Joseph N. Cassese
Director
/s/ David Livingston November 26, 1997
- --------------------------------------
David M. Livingston, M.D.
Director
/s/ Bruce A. Rendina November 26, 1997
- --------------------------------------
Bruce A. Rendina
Director
/s/ Stephen E. Ronai November 26, 1997
- --------------------------------------
Stephen E. Ronai, Esq.
Director
- --------------------------------------
Governor Hugh L. Carey
Director
/s/ John Theodore Chay November 26, 1997
- --------------------------------------
John Theodore Chay
Director
- --------------------------------------
Eric Moskow
Director
-6-
<PAGE>
EXHIBIT INDEX
Exhibit No. Title
Exhibit 5 Opinion of Nutter, McClennen & Fish, LLP
Exhibit 10 Clinical Studies, Ltd. 1996 Equity Incentive Plan, as amended
Exhibit 23.1 Consent of Nutter, McClennen & Fish, LLP (contained in Exhibit 5)
Exhibit 23.2 Consent of Coopers & Lybrand L.L.P.
Exhibit 23.3 Consent of Coopers & Lybrand L.L.P.
Exhibit 23.4 Consent of Deloitte & Touche LLP
-7-
Exhibit 5
NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
November 26, 1997
PhyMatrix Corp.
777 South Flagler Drive
West Palm Beach, FL 33401
Gentlemen/Ladies:
Reference is made to the registration statement on Form S-8 (the
"Registration Statement") which PhyMatrix Corp. (the "Company") is filing
concurrently herewith with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Securities Act"), with respect to
108,916 shares of the Company's Common Stock, $0.01 par value per share (the
"Common Stock"), issuable pursuant to the Company's Clinical Studies, Ltd. 1996
Equity Incentive Plan, as amended to date (the "Plan"), and an indeterminate
number of shares of such Common Stock which may be issued or become issuable
under the Plan by reason of stock dividends, stock splits or other
recapitalizations executed hereafter.
We have acted as legal counsel for the Company in connection with the
amendment to the Plan, are familiar with the Company's Amended and Restated
Certificate of Incorporation and By-Laws, both as amended to date, and have
examined such other documents as we deemed necessary for this opinion. Based
upon the foregoing, we are of the opinion that:
1. When issued and paid for in compliance with the terms of the Plan,
the 108,916 shares of Common Stock referred to above will be duly and validly
issued, fully paid and non-assessable; and
2. The additional shares of Common Stock which may become issuable
under the Plan by reason of stock dividends, stock splits or other
recapitalizations hereafter executed, if and when issued in accordance with the
terms of the Plan and upon compliance with the applicable provisions of law and
of the Company's Restated Certificate of Incorporation and By-Laws, both as
amended to date, will be duly and validly issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in connection with
the Registration Statement and hereby consent to the filing of this opinion
letter with and as a part of the Registration Statement and of any amendments
thereto. It is understood that this opinion letter is to be used in connection
with the offer and sale of the aforesaid shares only while the Registration
Statement, as it may be amended from time to time as contemplated by Section
10(a)(3) of the Securities Act, is effective under the Securities Act.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
NUTTER, McCLENNEN & FISH, LLP
MJB/ADA
Exhibit 10
CLINICAL STUDIES, LTD.
1996 EQUITY INCENTIVE PLAN
as amended effective November 7, 1997
1. PURPOSE.
The purpose of this Clinical Studies Equity Incentive Plan (the "Plan")
is to encourage employees of Clinical Studies, Ltd. ("CSL") to continue their
association with CSL and PhyMatrix Corp. (the "Company") by providing favorable
opportunities for them to participate in the ownership of the Company and in its
future growth. The Plan will provide a means for such individuals to purchase
shares of the common stock, par value $.01 per share (the "Stock") of PhyMatrix
Corp.
2. EFFECTIVE DATE AND DURATION.
The Plan shall become effective upon the date of its adoption and
approval by the Board of Directors of the Company (the "Board"). The Plan shall
remain in effect until terminated by the Board or the Committee (as defined
herein) or until all Stock has been issued under the Plan and vested, provided
that no Stock may be issued under the Plan after ten (10) years from the
effective date of the Plan.
3. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Compensation Committee of the
Board of Directors of the Company (the "Committee"). If the Company registers
its Common Stock under Section 12 of the Securities and Exchange Act of 1934, as
amended (the "Exchange Act"), from the date of such registration the Committee
shall be constituted so as to permit the Plan to comply with Rule 16b-3
promulgated under the Exchange Act.
(b) The Committee's construction and interpretation of the terms and
provisions hereof shall be final and conclusive. The Committee may in its sole
discretion issue shares of the Stock or grant options to purchase Stock as
provided in the Plan. The Committee shall have authority, subject to express
provisions of the Plan, (i) to construe any Stock Restriction Agreement (as
defined below) and the Plan; (ii) to prescribe, amend and rescind rules and
regulations relating to the Plan; (iii) to determine the terms and provisions of
any Stock Restriction Agreement, which need not be identical; and (iv) to make
all other determinations in the judgment of the Committee necessary or desirable
for the administration of the Plan. The Committee may correct any defect or
supply any omission or reconcile any inconsistency in the Plan, any Stock
Restriction Agreement or other instrument, document or agreement issued in
connection therewith in the manner and to the extent it shall deem expedient to
carry the Plan into effect, and the Committee shall be the sole and final judge
of such expediency. No member of the Committee shall be liable for any action or
determination made in good faith.
4. ISSUANCE OF PLAN SHARES.
(a) The Stock to be issued under the Plan shall be shares of the
Company's Stock as more particularly provided in the Company's Certificate of
Incorporation, as the same may be amended from time to time. The total amount of
Stock which may be issued, including Stock issued pursuant to the exercise of
Options granted hereunder, under the Plan shall equal 108,916 shares, provided
that such aggregate number of shares shall be subject to adjustment in
accordance with the provisions of Section 15 hereof.
<PAGE>
(b) Directors, officers and employees (collectively referred to herein
as "employees" or an "employee") shall be eligible for selection from time to
time by the Committee to participate in the Plan; provided that if the Stock is
registered under the Exchange Act, then with respect to the participation of
officers and members of the committee to be appointed, such participation shall
be restricted or the Committee shall be constituted so as to permit the Plan to
comply with Rule 16b-3 promulgated Under the Exchange Act.
(c) The price at which shares may be purchased pursuant to the Plan (the
"Purchase Price") shall be determined by the Committee, but shall not be less
than the par value of the Stock.
5. STOCK OPTIONS.
(a) The Stock for which options may be granted under the
Plan shall be shares of the Company's Common Stock as more particularly provided
in the Company's Certificate of Incorporation, as the same may be amended from
time to time. The total amount of Stock which may be issued, including Stock
issued under Section 4 or pursuant to the exercise of Options granted hereunder,
under the plan shall equal 108,916 shares, provided that such aggregate number
of shares shall be subject to adjustment in accordance with the provisions of
Section 15 hereof.
(b) The Committee may from time to time, and subject to the provisions
of the Plan and such other terms and conditions as the Committee may prescribe,
grant to any participant in the Plan one or more options to purchase for cash or
shares the number of shares of Common Stock ("Stock Options") allotted by the
Committee. The date a Stock Option is granted shall mean the date selected by
the Committee as of which the Committee allots a specific number of shares to a
participant pursuant to the Plan.
(c) Directors, officers and employees (collectively referred to herein
as "employees" or an "employee") shall be eligible for selection from time to
time by the Committee to participate in the Plan; provided that if the Stock is
registered under the Exchange Act, then with respect to the participation of
officers and members of the committee to be appointed, such participation shall
be restricted or the Committee shall be constituted so as to permit the Plan to
comply with Rule 16b-3 promulgated under the Exchange Act.
(d) The option price at which shares may be purchased pursuant to the
Plan (the "Option Price") shall be determined by the Committee, but shall not be
less than the par value of the Stock.
6. INCENTIVE STOCK OPTIONS.
(a) The Stock for which stock options may be granted under the Plan
shall be shares of the Company's Common Stock, as more particularly provided in
the Company's Certificate of Incorporation, as the same may be amended from time
to time. The total amount of Stock which may be issued, including Stock issued
under Section 4 or pursuant to the exercise of options granted hereunder, under
the Plan shall equal 108,916 shares, provided that such aggregate number of
shares shall be subject to adjustment in accordance with the provisions of
Section 15 hereof.
(b) The Committee may, from time to time and subject to the provisions
of the Plan and such other terms and conditions as the Committee may prescribe,
grant to any participant in the Plan one or more "incentive stock options"
(intended to qualify as such under the provisions of section 422 of the Internal
Revenue Code of 1986, as amended ("Incentive Stock Options") to purchase for
cash or shares the number of shares of Common Stock allotted by the Committee.
The date an Incentive Stock Option is granted shall mean the date selected by
the Committee as of which the Committee allots a specific number of shares to a
participant pursuant to the Plan.
(c) Directors, officers and employees (collectively referred to herein
as "employees" or an "employee") shall be eligible for selection from time to
time by the Committee to participate in the Plan;
<PAGE>
provided that if the Stock is registered under the Exchange Act, then with
respect to the participation of officers and members of the committee to be
appointed, such participation shall be restricted or the Committee shall be
constituted so as to permit the Plan to comply with Rule 16b-3 promulgated under
the Exchange Act.
(d) The option price per share of Common Stock deliverable upon the
exercise of an Incentive Stock Option shall be 100% of the fair market value of
a share of Common Stock on the date the Incentive Stock Option is granted,
provided, however, in the event that an Incentive Stock Options shall be granted
to any owner of 10% or more of the total combined voting power of the Company
and its subsidiaries (a "Ten Percent Shareholder"), the option price per share
of Common Stock deliverable upon the exercise of an Incentive Stock Option by
such Ten Percent Shareholder shall be 110% of the fair market value of a share
of Common Stock on the date the Incentive Stock Option is granted to such Ten
Percent Shareholder (the "Option Price").
(e) Unless a shorter period is provided by the Committee or another
Section of this Plan, may be exercised during a period of ten years from the
date of grant thereof (the "Option Term"). No Incentive Stock Option shall be
exercisable after the expiration of its option term.
(f) The aggregate Fair Market Value, determined as of the date the
Incentive Stock Option is granted, of the Stock which may become exercisable by
any Employee during any calendar year shall not exceed $100,000.
7. WRITTEN AGREEMENT.
The terms upon which each share of Stock is issued or an option to
acquire Stock is granted hereunder shall be embodied in a written stock
restriction agreement which shall be subject to the terms and conditions
prescribed herein (each, a "Stock Restriction Agreement") and shall be signed by
the employee and by the Chief Financial Officer of the Company, for and on
behalf of the Company. Such a Stock Restriction Agreement may also contain such
other provisions as the Committee in its discretion shall deem advisable.
8. PURCHASE OF STOCK.
(a) Any Stock issued or option to acquire Stock granted hereunder may be
purchased, or exercised, as applicable, only after a date, which shall not be
before the adoption and approval of the Plan by the Board, as the Committee may
determine in its sole and absolute discretion (which determination need not be
the same for all Stock issued under the Plan).
(b) Unless otherwise provided in the Stock Restriction Agreement, Stock
shall be purchased by the delivery of payment of the Purchase Price or the
Option Price for such shares in United States dollars.
(c) The employee shall be responsible for and shall cause be paid all
income taxes arising from the purchase of any Stock issued hereunder or in
connection with the exercise of an option to purchase Stock. Whenever Stock is
to be issued hereunder, the Company shall have the right to: (i) require the
employee to remit to the Company an amount sufficient to satisfy federal, state
and local withholding tax requirements with respect to such issuance prior to
the delivery of any certificate or certificates of such Stock, (ii) withhold
such amounts from the employee's wages and salary, or (iii) take such other
action to satisfy the withholding obligations arising from such exercise as the
Committee reasonably may elect.
(d) As promptly as practicable after the receipt by the Company of (i)
payment of the Purchase Price or the Option Price for such shares in the form
required by the foregoing provisions of this Section 8 and (ii) execution by the
employee of a Stock Restriction Agreement (if not previously executed), the
Company shall cause to be delivered to such employee certificates) representing
the number of shares of Stock so purchased.
<PAGE>
(e) Immediately upon delivery to the employee of certificates)
representing the number of shares of Stock purchased, such employee shall
execute and deliver to the Company the certificates) and stock powers for any
unvested shares of Stock so purchased as provided for in Section 9.
9. VESTING OF STOCK AND OPTIONS.
Stock issued and options granted hereunder and any securities, or
options, substituted therefore, shall vest in accordance with the schedule
approved by the Committee and set forth in the applicable Stock Restriction
Agreement beginning on the date provided for in the employee's Stock Restriction
Agreement. If the Committee so elects, certificates for all or any portion of
the shares of Stock issued under this Plan to any employee shall be held by the
Company with stock powers indicating the certificate number(s) but otherwise
endorsed in blank by the employee to allow the Company to exercise its rights
under the applicable Stock Restriction Agreement, including without limitation
the Company's option to purchase unvested shares and, if applicable, the
Company's right of first refusal with respect to vested shares. The employee
shall execute and deliver such further documents from time to time as are
necessary or appropriate to carry out the purposes and intent of the Plan.
10. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH.
In the event that an employee ceases to be employed by the Company or
CSL for any reason, including without limitation death, disability, retirement,
resignation or termination (whether with or without cause), then, subject to any
accelerated vesting provisions or other rights contained in any Stock
Restriction Agreement by and between the Company and an employee: (i) any shares
of Stock held by the employee at the time of such event which are not vested in
the employee as provided for in Section 9 of the Plan shall automatically be
subject to the Company's option to purchase unvested shares as set forth in the
applicable Stock Restriction Agreement, (ii) any shares of Stock held by the
employee at the time of such event which are vested in the employee as provided
for in Section 9 shall continue to be subject to the stock transfer restrictions
as set forth in the applicable Stock Restriction Agreement, (iii) all unvested
options to acquire Stock shall terminate and (iv) any and all rights to further
participation in the Plan shall terminate as of the date of such event.
11. REQUIREMENTS OF LAW.
The Company shall not be required to sell or issue any Stock if the
issuance of such shares shall constitute or result in a violation by the
employee or the Company of any provisions of any law, statute or regulation of
any governmental authority. Specifically, in connection with the Securities Act
of 1933, the Company shall not be required to issue such shares unless the
Committee has received evidence satisfactory to it in its sole and absolute
discretion to the effect that the purchaser of such Stock will not transfer such
Stock except pursuant to a registration statement in effect under such Act or
unless an opinion of counsel or other evidence satisfactory to the Committee has
been received by the Company to the effect that such registration is not
required. Any determination in this connection shall be final, binding and
conclusive. The Company shall not be obligated to take any other affirmative
action in order to cause the issuance of shares pursuant hereto to comply with
any law or regulation of any governmental authority.
12. INVESTMENT ASSURANCES.
The Company may require any employee, as a condition of purchasing Stock
hereunder, to give written assurances in substance and form satisfactory to the
Company to the effect that such person is acquiring the Stock for his or her own
account for investment and not with any present intention or selling or
otherwise disturbing the same.
<PAGE>
13. NO RIGHTS AS STOCKHOLDER.
No employee shall have rights as a stockholder with respect to any Stock
until the date of issue of his or her Stock. Except as otherwise expressly
provided in the Plan, no adjustment shall be made for dividends or other rights
for which the record date is prior to the date such Stock is issued.
14. CHANGES IN THE COMPANY'S CAPITAL STRUCTURE.
(a) Nothing in the Plan shall affect in any way the right or power of
the Company or any of its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or the dissolution or liquidation of the Company or any sale or
transfer of all or any part of its assets or business or any other corporate act
or proceeding, whether of a similar character or otherwise.
(b) In the event there are splits, subdivisions or combinations of
shares of Stock, the number of shares available under the Plan shall be
increased or decreased proportionately, as the case may be.
(c) In case the Company is merged or consolidated with another
corporation and the Company is not the surviving corporation, or in case all of
the capital stock or substantially all of the assets of the Company are acquired
by any other corporation, or in case of a liquidation of the Company, or in the
case of an initial public offering by the Company, the Board, or the Board of
Directors of any corporation assuming the obligations of the Company hereunder
either may: (i) assume and/or continue the Plan, and in connection therewith,
may (A) make appropriate provision (including the reservation of a sufficient
number of shares of authorized capital stock) for the issuance, on an equitable
basis, of the appropriate kind and amount of stock of the Company, or of the
surviving, acquiring, consolidated or reorganized corporation, and (t) make such
stock subject to the terms and conditions currently set forth in the Plan and
the Stock Restriction Agreements, including without limitation provisions
relating to vesting requirements, the Company's option to purchase unvested
shares and the Company's right of first refusal in connection with vested
shares, or (ii) elect to treat such event as a termination of employment of all
eligible employees, whether or not currently participating in the Plan, and may,
at its option, exercise the Company's option to purchase any unvested Stock, and
may terminate the Plan; provided, however, that nothing in this Section 14 shall
in any way void or restrict accelerated vesting provisions or other rights
contained in any Stock Restriction Agreement by and between the Company and an
employee.
15. AMENDMENT AND TERMINATION OF THE PLAN.
The Plan may at any time or from time to time be terminated, modified or
amended by action of the Committee or the Board; provided however, that without
the further approval of the holders of at least a majority of the outstanding
shares of all classes of capital stock of the Company that entitle the holders
thereof to vote in the election of directors of the Company, neither the
Committee nor the Board may (i) materially increase the benefits accruing to
employees under the Plan, (ii) change the aggregate number of shares which may
be issued pursuant to the provisions of the Plan, or (iii) change the class of
persons eligible to purchase Stock. The termination or modification or amendment
of the Plan shall not, without the consent of an employee, affect his or her
rights to purchase Stock previously granted to him or her. With the consent of
the employee affected, the Committee may amend outstanding Stock Restriction
Agreements in a manner not inconsistent with the Plan.
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the
Registration Statement of PhyMatrix Corp. on Form S-8 of our report dated March
13, 1997, except as to information presented in Note 20, for which the date is
April 24, 1997, on our audits of the consolidated financial statements and
financial statement schedule of PhyMatrix Corp. as of January 31, 1997 and
January 31, 1996 and for the year ended January 31, 1997 and for the one month
period ended January 31, 1996 and the combined financial statements of PhyMatrix
Corp. as of December 31, 1995 and for the year ended December 31, 1995 and for
the period ended June 24, 1994 (inception) to December 31, 1994 appearing in the
Current Report of PhyMatrix Corp. on Form 8-K dated October 6, 1997.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
November 25, 1997
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement of PhyMatrix Corp. on Form S-8 of our report dated October 20, 1997 on
our audits of the supplemental consolidated financial statements of PhyMatrix
Corp. as of January 31, 1997 and for the year ended January 31, 1997 and the
supplemental combined financial statements of PhyMatrix Corp. as of December 31,
1995 and for the years ended December 31, 1995 and December 31, 1994 appearing
in the Current Report of PhyMatrix Corp. on Form 8-K dated October 6, 1997.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
November 25, 1997
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of PhyMatrix Corp. on Form S-8 of our report dated May 28, 1997 (relating to the
combined financial statements of Clinical Studies Ltd. and Clinical Marketing
Ltd. for the fiscal years ended December 31, 1996 and 1995) appearing in the
Current Report of PhyMatrix Corp. on Form 8-K dated October 6, 1997.
DELOITTE & TOUCHE LLP
Boston, Massachusetts
November 24, 1997
