<PAGE> 1
REGISTRATION NO. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW AMERICAN HEALTHCARE CORPORATION
-----------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Delaware 62-1750169
--------------------------------- ----------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
109 Westpark Drive, Suite 440
-----------------------------
Brentwood, Tennessee 37027
-----------------------------
(Address of Principal Executive Offices)
(Zip Code)
New American Healthcare Corporation Employee Stock Purchase Plan
----------------------------------------------------------------
(Full Name of Plan)
Thomas W. Singleton
109 Westpark Drive, Suite 440, Brentwood, Tennessee 37027
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(Name and Address of Agent for Service)
(615) 221-5070
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(Telephone number, including area code for agent for service)
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Proposed Proposed Maximum Amount of
Title of Securities Amount to be Maximum Offering Aggregate Offering Registration
to be Registered Registered(1) Price Per Share(2) Price Fee
- ---------------- ------------- ------------------ ------------------ -------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 Par Value 2,000,000 Shares $2.625 $5,250,000 $1,460
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 as
amended (the "Securities Act"), this registration statement also covers an
indeterminate number of additional shares that may become issuable pursuant to
the anti-dilution adjustment provisions of the Plan.
(2) Pursuant to Rule 457, the offering price is estimated solely for the purpose
of calculating the registration fee on the basis of the closing bid price of
$2.625 per Share, as reported on the New York Stock Exchange on June 9, 1999.
The Index to Exhibits appears on sequentially numbered page II-8.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
Registration Statement. In addition, all documents subsequently filed by New
American Healthcare Corporation, (the "Company" or the "Registrant") pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered 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 thereof from the date
of filing of 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 a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
(1) The Company's Prospectus on Form 424B4 (SEC File No.
333-57913), filed August 20, 1998.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended December 31, 1998 and September 30, 1998.
(3) The Company's Current Report on Form 8-K dated November 17,
1998 as amended on Form 8-K/A filed January 14, 1999.
(4) The Company's Current Report on Form 8-K dated November 18,
1998 as amended on Form 8-K/A filed January 19, 1999.
(5) The Company's Current Report on Form 8-K dated February 22,
1999.
(6) The description of the Company's shares of Common Stock, par
value $.01 per share (the "Common Stock"), contained in the
Registration Statement on Form S-1 (File Number 333-57913),
including any amendment or report filed for the purposes of
updating such description.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
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<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The consolidated financial statements and schedule of New American
Healthcare Corporation as of March 31, 1998 and 1997, and for the years ended
March 31, 1998 and 1997 and period August 16, 1995 (inception) through March 31,
1996, have been incorporated by reference herein in reliance upon the report of
KPMG LLP, independent certified public accountants, and upon the authority of
said firm as experts in accounting and auditing.
The financial statements of Doctors Hospital for the period January 1,
1996 through July 31, 1996 and year ended December 31, 1995, have been
incorporated by reference herein in reliance upon the report of KPMG LLP,
independent certified public accountants and upon the authority of said firm as
experts in accounting and auditing.
The financial statements of Center Hospital, Inc. for the year ended
April 30, 1997, and period June 28, 1995 through April 30, 1996, have been
incorporated by reference herein in reliance upon the report of KPMG LLP,
independent certified public accountants, and upon the authority of said firm as
experts in accounting and auditing.
The financial statements of Eastwood Hospital, Inc. for the period
January 1, 1997 through May 15, 1997 and years ended December 31, 1996 and 1995,
have been incorporated by reference herein in reliance upon the report of KPMG
LLP, independent certified public accountants and upon the authority of said
firm as experts in accounting and auditing.
The combined financial statements of Woodland Park Hospital,
Eastmoreland Hospital, Lander Valley Medical Center and Davenport Medical Center
for the periods June 1, 1997 through January 31, 1998, and September 1, 1996
through May 31, 1997, year ended August 31, 1996 and period July 1, 1995 through
August 31, 1995, have been incorporated by reference herein in reliance upon the
report of KPMG LLP, independent certified public accountants and upon the
authority of said firm as experts in accounting and auditing.
The financial statements of Puget Sound Hospital as of March 31, 1998
and May 31, 1997, and for the ten months ended March 31, 1998, the nine months
ended May 31, 1997, the twelve months ended August 31, 1996 and the three months
ended August 31, 1995, have been incorporated by reference herein in reliance
upon the report of KPMG LLP, independent certified public accountants and upon
the authority of said firm as experts in accounting and auditing.
The financial statements of Memorial Hospital of Adel as of June 30,
1998 and 1997 and for the two-years then ended have been incorporated by
reference herein in reliance upon the report of KPMG LLP, independent certified
public accountants and upon the authority of said firm as experts in accounting
and auditing.
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<PAGE> 4
ITEM 6. INDEMNIFICATION.
Under the Company's Certificate of Incorporation, and in accordance
with Section 145 of the Delaware General Corporation Law (the "Delaware Law"),
the Company will indemnify any person made or threatened to be made a party to
an action or proceeding, whether civil, criminal, administrative or
investigative (other than a "derivative" action by or in the right of the
Company to procure a judgment in its favor) by reason of the fact that such
person is or was a director or officer of the Company, against judgments, fines,
amounts paid in settlement and reasonable expenses, including attorney's fees
actually and necessarily incurred as a result of such action or proceeding if
such person acted in good faith and in a manner such person reasonably believed
to be in (or not opposed to) the best interests of the Company, and, in criminal
actions or proceedings, had no reasonable cause to believe was unlawful. A
similar standard of care is applicable in the case of derivative actions, except
that indemnification only extends to amounts paid in settlement and reasonable
expenses (including attorneys' fees) incurred in connection with the defense or
settlement of such an action and then, where the action is settled or otherwise
disposed of or the person is adjudged to be liable to the Company, only if and
to the extent the court in which such action was brought or, if none, a court of
competent jurisdiction determines that such person is fairly and reasonably
entitled to such indemnity and then only for such expenses as the court deems
proper.
The Certificate of Incorporation provides that the Company may
indemnify a director or officer for the expenses incurred in defending the
proceedings specified above, at the conclusion of or in advance of their final
disposition or settlement, and on such terms, to such extent, and subject to
such conditions as the Board of Directors shall determine. The Certificate of
Incorporation also provides that the Company may, in its sole discretion,
indemnify any person who is or was one of its employees or agents or any person
who is or was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise to the same degree as the foregoing indemnification of
directors and officers. The Certificate of Incorporation also provides that such
persons are presumed to be entitled to indemnification, and that the burden of
proving that such person is not entitled to indemnification is on the Company.
Finally, the Certificate of Incorporation provides that if a written claim by
such person for indemnification is not paid within 30 days, the claimant may
bring suit to recover the unpaid amount, and if successful, may recover
attorneys' fees and expenses.
In addition, the Company may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Company or another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against and incurred by such person in
such capacity, or arising out of the person's status as such whether or not the
Company would have the power or obligation to indemnify such person against such
liability under the provisions of the Delaware Law. The Company maintains
insurance for the benefit of the Company's officers and directors insuring such
persons against certain liabilities, including liabilities under the securities
laws.
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<PAGE> 5
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on Page II-8 of this Registration Statement, which Index is
incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
The Company 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective 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, that paragraphs (1)(i) and (1)(ii) do not apply if the registration
statement is on Form S-3, Form S-8 or Form F-3 and 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 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, 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.
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<PAGE> 6
4. The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company'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.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to partners, directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a partner, director, officer or controlling person of the
Company in the successful defense of any action suit or proceeding) is asserted
by such partner, director, officer or controlling person in connection with the
securities being registered, the Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
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 Brentwood, State of Tennessee, on June 16, 1999.
New American Healthcare Corporation
By: /s/ Thomas W. Singleton
----------------------------------------
Thomas W. Singleton
Chief Executive Officer, President
and Chief Operating Officer
New American Healthcare Corporation
Employee Stock Purchase Plan
By: /s/ Timothy S. Hill
----------------------------------------
Timothy S. Hill
Senior Vice President
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature to the Registration statement appears below
hereby appoints Dana C. McLendon, Jr. or Timothy S. Hill and each of them, any
one of whom may act without the joinder of the others, as his attorney-in-fact
to execute in the name and behalf of any such person, individually and in the
capacity stated below, and to file all amendments and post-effective amendments
to this Registration Statement, which amendment or amendments may make such
changes and additions in this Registration Statement as such attorney-in-fact
may deem necessary or appropriate.
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Thomas W. Singleton Chief Executive Officer, President and June 1, 1999
- ----------------------------- Chief Operating Officer
Thomas W. Singleton
/s/ Dana C. McLendon, Jr. Senior Vice President - Chief June 1, 1999
- ----------------------------- Administrative Officer
Dana C. McLendon, Jr.
/s/ Timothy S. Hill Senior Vice President and Chief June 1, 1999
- ----------------------------- Financial Officer
Timothy S. Hill
/s/ Richard H. Stowe Director June 1, 1999
- -----------------------------
Richard H. Stowe
/s/ James B. Hoover Director June 1, 1999
- -----------------------------
James B. Hoover
/s/ David A. Jensen Director June 1, 1999
- -----------------------------
David A. Jensen
/s/ Jeptha W. Dalston Director June 1, 1999
- -----------------------------
Jeptha W. Dalston
/s/ Paul B. Queally Director June 1, 1999
- -----------------------------
Paul B. Queally
</TABLE>
II-7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description of Exhibit
----------- ----------------------
<S> <C>
4.1 Certificate of Incorporation of Company (incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement No. 333-57913
on Form S-1).
4.2 By-Laws of Company (incorporated by reference to Exhibit 3.2 to the
Company's Registration Statement No. 333-57913 on Form S-1).
4.3 Employee Stock Purchase Plan.
5 Opinion of Harwell Howard Hyne Gabbert & Manner, P.C.
23.1 Consent of KPMG LLP, Independent Certified Public Accountants.
23.2 Consent of KPMG LLP, Independent Certified Public Accountants.
23.3 Consent of KPMG LLP, Independent Certified Public Accountants.
23.4 Consent of KPMG LLP, Independent Certified Public Accountants.
23.5 Consent of KPMG LLP, Independent Certified Public Accountants.
23.6 Consent of KPMG LLP, Independent Certified Public Accountants.
23.7 Consent of KPMG LLP, Independent Certified Public Accountants.
23.8 Consent of Harwell Howard Hyne Gabbert & Manner, P.C.
(contained in Exhibit 5).
24 Power of Attorney (see signature page).
</TABLE>
II-8
<PAGE> 1
NEW AMERICAN HEALTHCARE CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
ARTICLE I.
TITLE, PURPOSE AND TERM
Section 1.01 This Plan shall be known as the New American Healthcare
Corporation Employee Stock Purchase Plan (hereinafter referred to as the
"Plan").
Section 1.02 The purpose of the Plan is to provide the Employees of New
American Healthcare Corporation and designated subsidiaries with a convenient
way to become stockholders of the Company. It is believed that employee
participation in the ownership of the Company will help to achieve the unity of
purpose essential to the continued growth of the Company and benefit its
employees and stockholders. This Plan is intended to be effective as an employee
stock purchase plan, as defined in Section 423 of the Internal Revenue Code of
1986, as amended, and shall be interpreted and construed in accordance with such
purpose.
Section 1.03 The Plan will be effective on the Effective Date. The Plan
will be continued from year to year but, subject to Section 5.03, may be
modified or discontinued by the Company at any time.
ARTICLE II.
DEFINITIONS
As used herein, the following words and phrases shall have the meanings
specified below, unless a different meaning is plainly required by the context:
Section 2.01 The term "Anniversary Date" shall mean each January 1 on
and after the Effective Date.
Section 2.02 The term "Board of Directors" shall mean the Board of
Directors of New American Healthcare Corporation.
Section 2.03 The term "Closing Market Price" shall mean the closing
price of the Sponsoring Employer Stock as reported in The Wall Street Journal
for the date of determination; provided, however, if the Sponsoring Employer
Stock is not listed on a national securities exchange, then the term "Closing
Market Price" shall mean the market value of the Sponsoring Employer Stock as
determined by the Board of Directors.
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Section 2.04 The term "Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
Section 2.05 The term "Committee" shall mean the committee, if any,
designated by the Board of Directors in accordance with Section 5.01 to
administer the Plan.
Section 2.06 The term "Company" shall mean New American Healthcare
Corporation (sometimes referred to as the "Sponsoring Employer") and its
successors by merger or consolidation and all of its subsidiary corporations,
except those subsidiary corporations expressly excluded from participation in
the Plan by action of the Board of Directors. The Company's principal offices
are located at 109 Westpark Drive, Suite 440, Brentwood, Tennessee 37027.
Section 2.07 The term "Continuous Service" shall mean the number of
days of continuous employment with the Company from the Employee's last hiring
date to the Employee's date of severance of employment for any reason.
Continuous Service shall not be broken and shall be credited for absences due to
vacation, temporary sickness or injury or military leave.
Section 2.08 The term "Contribution Account" shall mean the account
established on behalf of a Participant to which shall be credited the amount of
the Participant's contribution, pursuant to Article IV.
Section 2.09 The term "Effective Date" shall mean August 1, 1999.
Section 2.10 The term "Employee" shall mean each current and future
employee of the Company whose customary employment is at least twenty (20) hours
a week and more than five months in a calendar year.
Section 2.11 The term "Exercise Date" shall mean the last day of the
Plan Year on which the Sponsoring Employer Stock publicly trades.
Section 2.12 The term "Grant Date" shall mean the first day of the Plan
Year on which the Sponsoring Employer Stock publicly trades.
Section 2.13 The term "Issue Price" shall mean the per share price of
the Sponsoring Employer Stock to be charged to Participants at the "Exercise
Date". The "Issue Price" shall be determined as outlined in Article IV.
Section 2.14 The term "Participant" shall mean any Employee of the
Company who has met the conditions and provisions for becoming a Participant as
provided in Article III hereof.
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<PAGE> 3
Section 2.15 The term "Participant's Contribution Rate" shall be an
exact number of dollars determined by the Participant to contribute each pay
period by regular payroll deductions to his Contribution Account as outlined in
Section 4.02 and the term "Participant's Contribution" shall be the aggregate
dollars actually so contributed.
Section 2.16 The term "Normal Pay" shall be computed, with respect to
Employees who are paid on an hourly basis, by annualizing each such Employee's
hourly base pay and his regular scheduled hours of work as of the December 1
immediately preceding a Plan Year and dividing by twelve, except with respect to
the First Plan Year, for which the Normal Pay shall be computed as of July 1,
1999 in the same fashion. For a salaried employee the "Normal Pay" shall be the
greater of such employee's compensation for the calendar year for which the
determination is being made or the immediately preceding calendar year.
Section 2.17 The term "Plan Year" shall mean a consecutive twelve (12)
month period beginning on the first day of January and ending on the last day of
December, except that the first Plan Year shall begin on the first day of
August, 1999 and shall end on the last day of December, 1999 (the "First Plan
Year").
Section 2.18 The term "Sponsoring Employer Stock" shall mean those
shares of the Company's common stock, par value $0.01 per share, which pursuant
to Section 4.01 are reserved for issuance to Participants upon the exercise of
options granted under this Plan.
Section 2.19 Any words herein used in the masculine shall be read and
construed in the feminine where they would so apply. Words in the singular shall
be read and construed as though in the plural in all cases where they would so
apply.
ARTICLE III.
PARTICIPATION IN PLAN
Section 3.01 Each Employee shall become eligible to be a Participant of
the Plan and may participate therein upon being employed by the Employer.
Section 3.02 Except as otherwise provided in Sections 4.02 and 4.06,
all eligible Employees who become Participants of the Plan shall have the same
rights and privileges. Upon becoming a Participant, said Participant shall be
bound by the terms of this Plan, including any amendments hereto.
Section 3.03 Each Employee who becomes eligible to be a Participant in
the Plan shall be furnished a summary of the Plan and enrollment forms. If such
Employee elects to participate hereunder, he must complete such form and file it
with the Company no later than July 31, 1999 for the First Plan Year and fifteen
days prior to the Anniversary Date for
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<PAGE> 4
all subsequent Plan Years. The completed enrollment form shall indicate the
Participant's Contribution Rate authorized by the Participant. The Employee's
election to participate shall remain in effect for the current and all future
Plan Years unless otherwise revoked or modified by the Employee. If any Employee
does not elect to participate in any given Plan Year, he may elect to
participate in a future Plan Year so long as he continues to meet the
eligibility requirements and timely elects to participate in such year.
ARTICLE IV.
ISSUANCE OF STOCK OPTIONS
Section 4.01 The aggregate number of shares of the Sponsoring Employer
Stock that may be issued to Participants under the Plan upon the exercise of
options granted hereunder shall be, and the Company shall reserve, 2,000,000
shares of Company Stock. These shares may be authorized and unissued shares, or
issued shares held in or acquired for the treasury of the Company, or shares of
common stock reacquired by the Company upon purchase in the open market or
otherwise.
Section 4.02 In order to participate in this Plan and be granted
options hereunder, an Employee must authorize the Company or its affiliate to
deduct the Participant's Contribution Rate from each paycheck. Such Contribution
Rate must be an exact number of dollars per month, but not less than $10.00 per
pay period, and not more than 10% of such Employee's Normal Pay. Such
authorization shall be in writing and on such forms as provided by the Company.
Such deductions shall begin on the first pay period after the Company's receipt
of the Employee's enrollment forms. For all purposes of this Plan, such
deductions shall be deemed a part of the Participant's Contribution. No interest
shall accrue to any Participant on any amounts deducted from his paychecks
pursuant to this Plan.
The Participant's Contribution Rate, once established, shall remain in
effect for all Plan Years unless changed by the Participant in writing on such
forms as provided by the Company and filed with the Company.
At any time during the Plan Year, a Participant may notify the Company
that he wishes to withdraw from the Plan and discontinue his payroll deductions.
This notice shall be in writing and on such forms as provided by the Company.
Payroll deductions will be stopped as soon as practical, but not more than
thirty (30) days following the Company's receipt of the withdrawal notice.
At any time during the Plan Year, a Participant may notify the Company
that he wishes to discontinue his payroll deductions to the Plan. This notice
shall be in writing and on such forms as provided by the Company. Payroll
deductions will be stopped as soon
4
<PAGE> 5
as practical, but not more than thirty (30) days following the Company's receipt
of the withdrawal notice.
A Participant may elect to withdraw all of his Contribution Account
once at any time during the Plan Year without being terminated from the Plan for
such year. However, if the Contribution Account is withdrawn, no further
contributions will be permitted during that Plan year by such withdrawing
Participant. Where notice is received during the last thirty (30) days of any
Plan Year, the Company shall have no liability for refunds not processed before
shares are purchased on behalf of the Participant.
Section 4.03 If in a Plan Year the total number of shares of Company
Stock then subject to options granted to Participants exceeds the number of
shares of Company Stock authorized and then available under this Plan, a
pro-rata allocation of the available shares will be made among all Participants
authorizing payroll deductions based on the relative amounts of their respective
payroll deductions up to the Exercise Date.
Section 4.04 The Issue Price of the Sponsoring Employer Stock under
this Plan will be the lesser of (i) 85% of the Closing Market Price on the Grant
Date, or (ii) 85% of the Closing Market Price on the Exercise Date.
Section 4.05 On each Exercise Date the Participant's Contribution
Account shall be used to purchase the maximum number of whole shares of Company
Stock determined by dividing the Issue Price into the Participant's Contribution
Account. Any money remaining in a Participant's Contribution Account shall be
returned to the Employee. Options granted under this Plan shall be subject to
such amendment or modifications as the Company shall deem necessary to comply
with any applicable laws and regulations, and shall contain such other
provisions as the Company shall from time to time approve and deem necessary.
Section 4.06 In no event may a Participant (i) be granted an option or
options under this Plan (and any other employee stock purchase plan of the
Company) during a calendar year to purchase Company Stock having an aggregate
fair market value (determined on the Grant Date) in excess of the largest amount
for which rights to purchase stock can accrue in a calendar year under the Code,
(ii) be granted an option if such Participant beneficially owns, immediately
after the option is granted, five percent (5%) or more of the total combined
voting power or value of all classes of stock of the Company or of its
subsidiary corporations, as determined under the Code, or (iii) transfer or
otherwise alienate any option granted to him under this Plan.
Section 4.07 Company stock certificates evidencing Company Stock
purchased upon the exercise of options granted under the Plan shall be issued as
soon as practical after the date of such exercise.
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<PAGE> 6
Section 4.08 Any Employee whose employment is terminated for any reason
(except death, retirement or long-term disability in accordance with the
Employer's long-term disability plan) during the Plan Year shall cease to be a
Participant immediately. The balance of the Participant's Contribution Account
shall be paid to such Participant, or his legal representative, as soon as
practical after his termination. Any unexercised options granted to such
Participant shall be deemed null and void.
Section 4.09 If a Participant dies during a Plan Year, no further
contributions on behalf of the deceased Participant may be made. The legal
representative of the deceased Participant may elect to withdraw the balance in
said Participant's Contribution Account by notifying the Company in writing at
least thirty (30) days prior to the last day of the Plan Year. In the event no
timely election to withdraw is made, the balance accumulated in the deceased
Participant's Contribution Account shall be used to purchase shares of the
Sponsoring Employer Stock in accordance with Section 4.05 hereof. The balance,
if any, shall be distributed to such legal representative as soon as practical
after the Exercise Date.
Section 4.10 If a Participant shall retire or become long-term disabled
and terminate employment (in accordance with the Company's long-term disability
plan) during a Plan Year, no further contributions on behalf of the retired or
disabled Participant may be made. The Participant may elect to withdraw the
balance in his or her Contribution Account by notifying the Company in writing
at least thirty (30) days prior to the last day of the Plan Year. In the event
no timely election to withdraw is made, the balance accumulated in the retired
or disabled Participant's Contribution Account shall be used to purchase shares
of the Sponsoring Employer Stock in accordance with Section 4.05 hereof. The
balance, if any, shall be distributed to such Participant as soon as practical
after the Exercise Date.
ARTICLE V.
MISCELLANEOUS
Section 5.01 The Board of Directors or a committee established by such
Board to which is delegated such authority, shall administer the Plan and keep
records of individual Participant benefits. The Board or such committee shall
interpret the Plan and shall determine all questions arising in the
administration, interpretation and application of the Plan, and all such
determinations shall be conclusive and binding on all persons. Furthermore, the
Board of Directors may adopt such rules and regulations, not inconsistent with
this Plan, as the Board of Directors may deem advisable to carry out the purpose
of the Plan.
Section 5.02 Each Participant, former Participant, or any other person
who shall claim a right or benefit under this Plan, shall be entitled only to
look to the Company for such benefit.
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<PAGE> 7
Section 5.03 Except as otherwise required by the Code or, with respect
to persons required to file reports under Section 16 of the Securities Exchange
Act of 1934, as amended, Rule 16b-3 under such Act, the Board of Directors may
at any time or from time to time amend the Plan in any respect or terminate the
Plan without stockholder approval. Notwithstanding anything to the contrary set
forth herein, if any provision herein shall be determined at any time to be in
violation of:
(a) Rule 16b-3 (or any successor regulation), as to a person who is a
reporting person under Section 16 of such Act, or
(b) to create any unintended tax result,
then, such provision shall, upon such determination, automatically be deemed
inoperative, void and of no force and effect as if never set forth herein and
may be deleted from this Plan or amended by the Board of Directors at any time
with prospective or retroactive effect. The Plan shall be suspended in the event
a "tender offer" is made to the Company's stockholders. The Board's
determination that such an offer has been made shall be conclusive. No
contributions shall thereafter be accepted and all Contribution Accounts shall
be refunded to Participants. The Plan may thereafter be reactivated by Board
action at any time.
Section 5.04 The Company will pay all expenses of administering this
Plan that may arise in connection with the Plan.
Section 5.05 Any rules, regulations, or procedures that may be
necessary for the proper administration or functioning of this Plan that are not
covered in this Plan shall be promulgated and adopted by the Board of Directors
or the Committee.
Section 5.06 Headings and subheadings in this Plan are inserted for
convenience of reference only and are to be ignored in the construction of any
provisions hereof.
Section 5.07 This Plan shall be construed in accordance with the laws
of the State of Delaware.
Section 5.08 Any misstatement in an Employee's age, length of
Continuous Service, date of employment or any other such matter, shall be
corrected when it becomes known that any such misstatement of fact has occurred.
Section 5.09 The options granted hereunder may not be assigned or
transferable by Participants other than upon the death of a Participant by will
or the laws of descent and distribution. If a Participant attempts any
prohibited assignment, transfer or alienation, the Company shall disregard such
action. During the lifetime of each Participant, the options granted hereunder
are only exercisable by such Participant.
7
<PAGE> 8
Section 5.10 This Plan is not and shall not be deemed to constitute a
contract between an Employer and any Employee or to be a consideration of an
inducement for the employment of any Employee. Nothing contained in this Plan
shall be deemed to give any Employee the right to be retained in the service of
Employer or to interfere with the right of Employer to discharge any Employee at
any time regardless of the effect that such discharge shall have upon him as a
Participant in the Plan.
Section 5.11 No liability whatever shall attach to or be incurred by
any past, present or future stockholders, officers, or directors, as such, of
the Company, under or by reason of any of the terms, conditions or agreements
contained in this Plan or implied therefrom, and any and all liabilities of and
any and all rights and claims against the Company, or any stockholder, officer
or director as such whether arising at common law or in equity or created by
statute or constitution or otherwise, pertaining to this Plan, are hereby
expressly waived and released by every Participant, as a part of the
consideration for any benefits under this Plan. No member of the Board of
Directors or the Committee and no employee of the Company involved in the
administration of this Plan shall be personally liable for any mistake of
judgment made in good faith, and the Company shall indemnify and hold harmless
such person against any cost or expense (including counsel fees) or liability
(including any sum paid in settlement of a claim) with the consent of the
Company arising out of any act or omission to act in connection with this Plan
unless arising out of such person's own fraud or bad faith.
Section 5.12 The aggregate number of shares of the Sponsoring Employer
Stock reserved for purchase under the Plan as provided in Section 4.01 hereof
and the calculation of the Issue Price shall be appropriately adjusted to
reflect any increases or decreases in the number of issued shares of the
Sponsoring Employer Stock resulting from a subdivision, consolidation or
combination of shares or other capital adjustments, payment of a stock dividend,
stock split, stock rights offering, special dividend, or other change or
exchange for other securities by reclassification or otherwise, or other such
increase or decrease in such shares of the Sponsoring Employer Stock.
Section 5.13 The Sponsoring Employer's obligation to sell and deliver
the Sponsoring Employer Stock under the Plan is at all times subject to all
approvals of, or filings with, any governmental authorities required in
connection with the authorization, issuance, sale or delivery of such stock.
Section 5.14 A Participant who is a person subject to Section 16 of the
Securities Exchange Act of 1934, as amended, (i) is not allowed to sell any
shares of Company Stock purchased hereunder until six (6) months after the
Exercise Date relating to such shares, and (ii) if such Participant ceases
participation in the Plan, such Participant may not enroll in the Plan again for
at least six (6) months.
8
<PAGE> 1
June 15, 1999
New American Healthcare Corporation
109 Westpark Drive, Suite 440
Brentwood, Tennessee 37027
Ladies and Gentlemen:
We have acted as special counsel to New American Healthcare Corporation
(the "Company") in connection with the registration of the Company's Employee
Stock Purchase Plan pursuant to a registration statement on Form S-8, as filed
with the Securities and Exchange Commission (the "Registration Statement"). This
firm hereby consents to the filing of this opinion as an exhibit to the
Registration Statement and with agencies of such states and other jurisdictions
as may be necessary in the course of complying with the laws of such states and
jurisdictions regarding the offering and sale of the stock in accordance with
the Registration Statement.
We have examined originals, or certified or photostatic copies of such
statutes, records, regulations, certificates of the officers of the Company and
of public officials, and such other information as we have deemed necessary for
purposes of rendering this opinion.
In stating our opinion, we have assumed: (i) that all signatures are
genuine, all documents submitted to us as originals are authentic, and all
documents submitted to us as copies conform to authentic original documents; and
(ii) that the parties to such documents have the legal right and power under all
applicable laws, regulations and agreements to enter into, execute, deliver and
perform their respective obligations thereunder.
On the basis of such review, but subject to the limitations expressed
herein, we are of the opinion, as of the date hereof, that the securities being
registered by the Registration Statement will, when sold as contemplated under
the Registration Statement, be legally issued, fully paid and non-assessable.
Our opinion herein is limited solely to the laws of the United States
of America and the corporate law of the State of Delaware. In rendering the
opinion set forth herein, we have relied upon the documents referenced above and
have made no independent verification or investigation of factual matters
pertaining thereto or to the Company. The opinion expressed herein is subject to
applicable
<PAGE> 2
New American Healthcare Corporation
June 15, 1999
Page 2
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws now or hereafter in effect relating to or affecting the
rights of creditors generally, judicial discretion, and equitable principles
whether applied pursuant to a proceeding at law or in equity; and no opinion is
expressed with respect to the availability of equitable remedies.
Very truly yours,
HARWELL HOWARD HYNE
GABBERT & MANNER, P.C.
<PAGE> 1
Exhibit 23.1
The Board of Directors New American Healthcare Corporation:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Interest of Named Experts and
Counsel" in the prospectus.
KPMG LLP
Nashville, Tennessee
June 16, 1999
<PAGE> 1
Exhibit 23.2
The Board of Trustees Doctors Hospital:
We consent to the use of our report incorporated herein by reference and
to the reference to our firm under the heading "Interest of Named Experts and
Counsel" in the prospectus.
KPMG LLP
Nashville, Tennessee
June 16, 1999
<PAGE> 1
Exhibit 23.3
The Board of Directors Center Hospital, Inc.:
We consent to the use of our report incorporated herein by reference and
to the reference to our firm under the heading "Interest of Named Experts and
Counsel" in the prospectus.
KPMG LLP
Nashville, Tennessee
June 16, 1999
<PAGE> 1
Exhibit 23.4
The Board of Directors Eastwood Hospital, Inc.:
We consent to the use of our report incorporated herein by reference and
to the reference to our firm under the heading "Interest of Named Experts and
Counsel" in the prospectus.
KPMG LLP
Nashville, Tennessee
June 16, 1999
<PAGE> 1
Exhibit 23.5
The Board of Directors New American Hospital Corporation:
We consent to the use of our report incorporated herein by reference on The
Hospitals and to the reference to our firm under the heading "Interest of Named
Experts and Counsel" in the prospectus.
KPMG LLP
Nashville, Tennessee
June 16, 1999
<PAGE> 1
Exhibit 23.6
The Board of Directors PSH, Inc.:
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Interest of Named Experts and
Counsel" in the prospectus.
KPMG LLP
Nashville, Tennessee
June 16, 1999
<PAGE> 1
Exhibit 23.7
The Board of Directors New American HealthCare Corp.:
We consent to the use of our report incorporated herein by reference on
Memorial Hospital of Adel and to the reference to our firm under the heading
"Interest of Named Experts and Counsel" in the prospectus.
KPGM LLP
Nashville, Tennessee
June 16, 1999
