<PAGE>
As filed with the Securities and Exchange Commission on
June 28, 1996.
- -----------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
HOUSECALL MEDICAL RESOURCES, INC.
--------------------------------------------------
(Exact Name of Issuer as Specified in its Charter)
Delaware 58-2114917
_______________________________ _____________________
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1000 Abernathy Road, Building 400, Ste. 1825, Atlanta, Georgia 30328
- -------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Housecall Medical Resources, Inc. and its Subsidiaries 1996 Stock Option
and Restricted Stock Purchase Plan; Housecall Medical Resources, Inc. and
its Subsidiaries [1994] Stock Option and Restricted Stock Purchase Plan;
and Housecall Medical Resources, Inc. and its Subsidiaries Performance
Stock Option and Restricted Stock Purchase Plan
------------------------------------------------------------------------
Full Title of the Plans
Peter J. Bibb
Vice President and Chief Financial Officer
HOUSECALL MEDICAL RESOURCES, INC.
1000 Abernathy Road, Building 400, Ste. 1825,
Atlanta, Georgia 30328
(770) 379-9000
- -------------------------------------------------------------
(Name, Address and Telephone Number, including Area Code, of
Agent for Service)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------
Proposed
Title of Securities Amount to Maximum Aggregate Amount of
To Be Registered Be Registered Offering Price Registration Fee
- ------------------- ------------- ------------------ ---------------
<S> <C> <C> <C>
Common Stock, $0.01 1,717,702 shares $10,557,289<F1> $3,640.44
par value
- -----------------------------------------------------------------------------------------------------
<FN>
<F1> Determined in accordance with Rule 457(h)(1) and Rule 457(c) under the
Securities Act of 1933, based on the exercise prices of outstanding and
previously exercised options and purchase rights and based on $19.1875,
the average of the high and low sale prices quoted on The Nasdaq Stock
Market on June 24, 1996, with respect to shares issuable under the
Plans that are not subject to outstanding options or rights.
</FN>
/TABLE
<PAGE>
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
Registration Statement on Form S-8, and shall be deemed to be
a part thereof from the later of the date of filing of such documents
and the date of filing of this Registration Statement:
(a) The Registrant's Prospectus dated April 3, 1996, filed pursuant
to Rule 422(b) under the Securities Act of 1933;
(b) All other reports of the Registrant filed pursuant to
Section 13(a) or 15(d) of the Exchange Act since June 30, 1995,
financial statements for which fiscal year are included in the
Prospectus described in (a) above.
(c) The description of Common Stock contained in the Company's
Registration Statement filed on Form 8-A, filed under Section
12 of the Exchange Act, including all amendments or reports
filed for the purpose of updating such descriptions; and
(d) All other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act prior to filing of a post-effective
amendment which indicates that all securities offered pursuant
to this Registration Statement have been sold or which deregisters
all such securities that remain unsold.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Attorneys of Kilpatrick & Cody who worked on this matter
beneficially own 300 shares of Registrant Common Stock as of
June 26, 1996.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation provides that
no person shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for liability (i) for breach of the
director's duty and loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of
the State of Delaware, or (iv) for any transaction from which the
director drives an improper personal benefit. The Registrant's
Certificate of Incorporation also provides for indemnification of
each of the Registrant's directors and officers and in each and
every situation where, under Section 145 of the General Corporation
Law of the State of Delaware, the Registrant is permitted or empowered
to make such indemnification.
<PAGE>
Under Article V, Section 1 of the Registrant's Bylaws, the
Registrant may indemnify any director, officer, agent or employee
of the Registrant to the fullest extent provided by law.
Under Section 145 of the General Corporation Law of the
State of Delaware, a corporation may indemnify a director,
officer, employee or agent of the corporation (or other entity if
such person serving in such capacity as the corporation's
employee or agent at the corporation's request) against expenses
(including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him if he acted in good
faith and in an amount reasonably to be in, or not opposed to, the best
interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. In the case of an action brought by or in
the right of the corporation, the corporation may indemnify a
director, officer, employee or agent of the corporation (or other
entity if such person is serving in such capacity at the
corporation's request) against expenses (including attorney's
fees) actually and reasonably incurred by him if he acted in good
faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the corporation, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person is not fairly and reasonably entitled
to indemnification for such expenses as the court shall deem
proper.
The Registrant's directors and officers are insured against
losses arising from any claim against him as such for wrongful
acts or omissions, subject to certain limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are
as follow:
Exhibit Number Description
- -------------- -----------
4.1 Housecall Medical Resources, Inc. and its
Subsidiaries 1996 Stock Option and Restricted
Stock Purchase Plan.
4.2 Housecall Medical Resources, Inc. and its
Subsidiaries 1994 Stock Option and Restricted
Stock Purchase Plan (incorporated by reference
to Exhibit 10.20 to the Registrant's Registration
Statement on Form S-1, Commission File No.
333-688)
4.3 Housecall Medical Resources, Inc. and its
Subsidiaries Performance Stock Option and
Restricted Stock Plan
<PAGE>
5 Opinion of Kilpatrick & Cody
as to the legality of the
securities being registered
23 Consent of Ernst & Young LLP
25 Power of Attorney (included on
signature page of Registration
Statement)
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 to include any material information with respect to its
plan of distribution not previously disclosed in the registration
statement or any material change in such information 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 15(d) of the Securities Exchange Act of 1934 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 (the "Act") may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the 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 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.
<PAGE>
<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on it behalf by
the undersigned, thereunto duly authorized, in the City of Atlanta,
State of Georgia, on June 27, 1996.
HOUSECALL MEDICAL RESOURCES, INC.
By: /s/ George D. Shaunnessy
-----------------------------------------
George D. Shaunnessy, President and Chief
Executive Officer
POWER OF ATTORNEY AND SIGNATURES
Know all men by these presents, that each person whose signature
appears below constitutes and appoints George D. Shaunnessy and Peter J.
Bibb, or either of them, as attorney-in-fact, either with power of
substitution, for him in any and all capacities, to sign any
amendments to this Form S-8, and to file the same, with exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming
all that each of said attorneys-in-fact, or his substitute or
substitutes, may 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 as of June 27, 1996 by the
following persons on behalf of the Registrant in the capacities
indicated.
Signature Capacity
/s/ George D. Shaunnessy President, Chief Executive Officer,
- ---------------------------- and Director (Principal Executive
George D. Shaunnessy (Officer)
/s/ Peter J. Bibb Vice President, Chief Financial
- ---------------------------- Officer, and Secretary (Principal
Peter J. Bibb Financial and Accounting Officer)
<PAGE>
<PAGE>
Chairman of the Board of Directors
- ----------------------------
James B. Hoover
/s/ Howard R. Deutsch Director
- ----------------------------
Howard R. Deutsch
/s/ James E. Dalton, Jr. Director
- ----------------------------
James E. Dalton
/s/ Andrew M. Paul Director
- ----------------------------
Andrew M. Paul
/s/ R. Dale Ross Director
- ----------------------------
R. Dale Ross
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit Number Description
- -------------- -----------
4.1 Housecall Medical Resources, Inc. and its
Subsidiaries 1996 Stock Option and Restricted
Stock Purchase Plan.
4.3 Housecall Medical Resources, Inc. and its
Subsidiaries Performance Stock Option and
Restricted Stock Plan
5 Opinion of Kilpatrick & Cody
as to the legality of the
securities being registered
23 Consent of Ernst & Young LLP
HOUSECALL MEDICAL RESOURCES, INC. AND ITS SUBSIDIARIES
STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
Section 1. PURPOSE. The purpose of the Housecall
Medical Resources, Inc. and its Subsidiaries Stock Option and
Restricted Stock Purchase Plan (the "Plan") is to promote the
interests of Housecall Medical Resources, Inc., a Delaware
corporation (the "Company"), and any Subsidiary thereof and the
interests of the Company's stockholders by providing an
opportunity to selected employees, officers and directors of the
Company or any Subsidiary thereof as of the date of the adoption
of the Plan or at any time thereafter to purchase Common Stock of
the Company. By encouraging such stock ownership, the Company
seeks to attract, retain and motivate such employees and persons
and to encourage such employees and persons to devote their best
efforts to the business and financial success of the Company. It
is intended that this purpose will be effected by the granting of
"non-qualified stock options" and/or "incentive stock options" to
acquire the Common Stock of the Company and/or by the granting of
rights to purchase the Common Stock of the Company on a
"restricted stock" basis. Under the Plan, the Board of Directors
shall have the authority (in its sole discretion) to grant
"incentive stock options" within the meaning of Section 422(b) of
the Code, "non-qualified stock options" as described in Treasury
Regulation Section 1.83-7 or any successor regulation thereto, or
"restricted stock" awards.
Section 2. DEFINITIONS. For purposes of the Plan, the
following terms used herein shall have the following meanings,
unless a different meaning is clearly required by the context.
2.1. "Award" shall mean an award of the right to
purchase Common Stock granted under the provisions of Section 7
of the Plan.
2.2. "Board of Directors" shall mean the Board of
Directors of the Company.
2.3. "Code" shall mean the Internal Revenue Code of
1986, as amended.
2.4. "Committee" shall mean the committee of the Board
of Directors referred to in Section 5 hereof.
2.5. "Common Stock" shall mean the Common Stock, $.01
par value, of the Company.
2.6. "Employee" shall mean (i) with respect to an ISO,
any person, including an officer or director of the Company, who,
at the time an ISO is granted to such person hereunder, is
employed on a full-time basis by the Company or any Subsidiary of
the Company, and (ii) with respect to a Non-Qualified Option
and/or an Award, any person employed by, or performing services
for, the Company or any Subsidiary of the Company, including,
without limitation, directors and officers.
2.7. "ISO" shall mean an Option granted to a
Participant pursuant to the Plan that constitutes and shall be
treated as an "incentive stock option" as defined in Section
422(b) of the Code.
<PAGE>
2.8. "Non-Qualified Option" shall mean an Option
granted to a Participant pursuant to the Plan that is intended to
be, and qualifies as, a "non-qualified stock option" as described
in Treasury Regulation Section 1.83-7 or any successor regulation
thereto and that shall not constitute nor be treated as an ISO.
2.9. "Option" shall mean any ISO or Non-Qualified
Option granted to an Employee pursuant to the Plan.
2.10. "Participant" shall mean any Employee to whom an
Award and/or an Option is granted under the Plan.
2.11. "Parent of the Company" shall have the meaning
set forth in Section 424(e) of the Code.
2.12. "Subsidiary of the Company" shall have the
meaning set forth in Section 424(f) of the Code.
Section 3. ELIGIBILITY. Awards and/or Options may be
granted to any Employee. The Board of Directors shall have the
sole authority to select the persons to whom Awards and/or
Options are to be granted hereunder, and to determine whether a
person is to be granted a Non-Qualified Option, an ISO or an
Award or any combination thereof. No person shall have any right
to participate in the Plan. Any person selected by the Board of
Directors for participation during any one period will not by
virtue of such participation have the right to be selected as a
Participant for any other period.
Section 4. COMMON STOCK SUBJECT TO THE PLAN.
4.1. Number of Shares. The total number of shares of
Common Stock for which Options and/or Awards may be granted under
the Plan shall not exceed in the aggregate Seven Hundred Forty-
Nine Thousand Nine Hundred Thirty-One (749,931) shares of Common
Stock (subject to adjustment as provided in Section 8 hereof).
4.2. Reissuance. The shares of Common Stock that may
be subject to Options and/or Awards granted under the Plan may be
either authorized and unissued shares or shares reacquired at any
time and now or hereafter held as treasury stock as the Board of
Directors may determine. In the event that any outstanding
Option expires or is terminated for any reason, the shares
allocable to the unexercised portion of such Option may again be
subject to an Option and/or Award granted under the Plan. If any
shares of Common Stock acquired pursuant to an Award or the
exercise of an Option shall have been repurchased by the Company,
then such shares shall again become available for issuance
pursuant to the Plan.
4.3. Special ISO Limitations.
(a) The aggregate fair market value (determined as of
the date an ISO is granted) of the shares of Common Stock with
respect to which ISOs are exercisable for the first time by an
Employee during any calendar year (under all Incentive Stock
Option Plans of the Company or any Parent or Subsidiary of the
Company) shall not exceed $100,000.
(b) No ISO shall be granted to an Employee who, at the
time the ISO is granted, owns (actually or constructively under
the provisions of Section 424(d) of the Code) stock possessing
more than 10% of the total combined voting power of all classes
of stock of the Company or any Parent or Subsidiary of the
2<PAGE>
Company, unless the option price is at least 110% of the fair
market value (determined as of the time the ISO is granted) of
the shares of Common Stock subject to the ISO and the ISO by its
terms is not exercisable more than five years from the date it is
granted.
4.4. Limitations Not Applicable to Non-Qualified
Options or Awards. Notwithstanding any other provision of the
Plan, the provisions of Sections 4.3(a) and (b) shall not apply,
nor shall be construed to apply, to any Non-Qualified Option or
Award granted under the Plan.
Section 5. ADMINISTRATION OF THE PLAN.
5.1. Administration. The Plan shall be administered
by the Board of Directors or, if established at any time by the
Board of Directors, by a Committee thereof (the "Committee").
The Committee shall be appointed from time to time by, and shall
serve at the pleasure of, the Board of Directors.
5.2. Grant of Options/Awards.
(a) Options. The Board of Directors shall have the
sole authority and discretion under the Plan (i) to select the
Employees who are to be granted Options hereunder; (ii) to
designate whether any Option to be granted hereunder is to be an
ISO or a Non-Qualified Option; (iii) to establish the number of
shares of Common Stock that may be issued under each Option;
(iv) to determine the time and the conditions subject to which
Options may be exercised in whole or in part; (v) to determine
the form of the consideration that may be used to purchase shares
of Common Stock upon exercise of any Option (including the
circumstances under which the Company's issued and outstanding
shares of Common Stock may be used by a Participant to exercise
an Option); (vi) to impose restrictions and/or conditions with
respect to shares of Common Stock acquired upon exercise of an
Option; (vii) to determine the circumstances under which shares
of Common Stock acquired upon exercise of any Option may be
subject to repurchase by the Company; (viii) to determine the
circumstances and conditions subject to which shares acquired
upon exercise of an Option may be sold or otherwise transferred,
including, without limitation, the circumstances and conditions
subject to which a proposed sale of shares of Common Stock
acquired upon exercise of an Option may be subject to the
Company's right of first refusal (as well as the terms and
conditions of any such right of first refusal); (ix) to
establish a vesting provision for any Option relating to the
time when (or the circumstances under which) the Option may be
exercised by a Participant, including, without limitation,
vesting provisions that may be contingent upon (A) the Company
meeting specified financial goals, (B) a change of control of the
Company or (C) the occurrence of other specified events; (x) to
accelerate the time when outstanding Options may be exercised,
provided, however, that any ISOs shall be "accelerated" within
the meaning of Section 424(h) of the Code; and (xi) to establish
any other terms, restrictions and/or conditions applicable to any
Option not inconsistent with the provisions of the Plan.
Notwithstanding anything in the Plan to the contrary, in no event
shall any Option granted to any director or officer of the
Company who is subject to Section 16 of the Exchange Act become
exercisable, in whole or in part, prior to the date that is six
months after the date such Option is granted to such director or
officer.
3<PAGE>
(b) Awards. The Board of Directors shall have the
sole authority and discretion under the Plan (i) to select the
Employees who are to be granted Awards hereunder; (ii) to
determine the amount to be paid by a Participant to acquire
shares of Common Stock pursuant to an Award, which amount may be
equal to, more than, or less than 100% of the fair market value
of such shares on the date the Award is granted (but in no event
less than the par value of such shares); (iii) to determine the
time or times and the conditions subject to which Awards may be
made; (iv) to determine the time or times and the conditions
subject to which the shares of Common Stock subject to an Award
are to become vested and no longer subject to repurchase by the
Company; (v) to establish transfer restrictions and the terms and
conditions on which any such transfer restrictions with respect
to shares of Common Stock acquired pursuant to an Award shall
lapse; (vi) to establish vesting provisions with respect to any
shares of Common Stock subject to an Award, including, without
limitation, vesting provisions which may be contingent upon (A)
the Company meeting specified financial goals, (B) a change of
control of the Company or (C) the occurrence of other specified
events; (vii) to determine the circumstances under which shares
of Common Stock acquired pursuant to an Award may be subject to
repurchase by the Company; (viii) to determine the circumstances
and conditions subject to which any shares of Common Stock
acquired pursuant to an Award may be sold or otherwise
transferred, including, without limitation, the circumstances and
conditions subject to which a proposed sale of shares of Common
Stock acquired pursuant to an Award may be subject to the
Company's right of first refusal (as well as the terms and
conditions of any such right of first refusal); (ix) to determine
the form of consideration that may be used to purchase shares of
Common Stock pursuant to an Award (including the circumstances
under which the Company's issued and outstanding shares of Common
Stock may be used by a Participant to purchase the Common Stock
subject to an Award); (x) to accelerate time at which any or all
restrictions imposed with respect to any shares of Common Stock
subject to an Award will lapse; and (xi) to establish any other
terms, restrictions and/or conditions applicable to any Award not
inconsistent with the provisions of the Plan.
5.3. Interpretation. The Board of Directors shall be
authorized to interpret the Plan and may, from time to time,
adopt such rules and regulations, not inconsistent with the
provisions of the Plan, as it may deem advisable to carry out the
purposes of the Plan.
5.4. Finality. The interpretation and construction by
the Board of Directors of any provision of the Plan, any Option
and/or Award granted hereunder or any agreement evidencing any
such Option and/or Award shall be final and conclusive upon all
parties.
5.5. Voting. Members of the Board of Directors (or
members of the Committee, if established) who are either eligible
for Options and/or Awards hereunder or to whom Options and/or
Awards have been granted hereunder may vote on any matter
affecting the administration of the Plan or the granting of
Options and/or Awards under the Plan; provided, however, that no
director (or member of the Committee) shall vote upon the
granting of an Option or Award to himself, but any such director
may be counted in determining the existence of a quorum at any
meeting of the Board of Directors (or the Committee) at which the
Plan is administered or action is taken with respect to the
4<PAGE>
granting of any Option or Award.
5.6. Expenses, Etc. All expenses and liabilities
incurred by the Board of Directors in the administration of the
Plan shall be borne by the Company. The Board of Directors may
employ attorneys, consultants, accountants or other persons in
connection with the administration of the Plan. The Company, and
its officers and directors, shall be entitled to rely upon the
advice, opinions or valuations of any such persons. No member of
the Board of Directors shall be liable for any action,
determination or interpretation taken or made in good faith with
respect to the Plan or any Option and/or Award granted hereunder.
Section 6. TERMS AND CONDITIONS OF OPTIONS.
6.1. ISOs. The terms and conditions of each ISO
granted under the Plan shall be specified by the Board of
Directors and shall be set forth in an ISO agreement between the
Company and the Participant in such form as the Board of
Directors shall approve. The terms and conditions of each ISO
shall be such that each ISO issued hereunder shall constitute and
shall be treated as an "incentive stock option" as defined in
Section 422(b) of the Code. The terms and conditions of any ISO
granted hereunder need not be identical to those of any other ISO
granted hereunder.
The terms and conditions of each ISO shall include the
following:
(a) The option price shall be fixed by the Board of
Directors but shall in no event be less than 100% (or 110% in the
case of an Employee referred to in Section 4.3(b) hereof) of the
fair market value of the shares of Common Stock subject to the
ISO on the date the ISO is granted. For purposes of the Plan,
the fair market value per share of Common Stock as of any day
shall mean the average of the closing prices of sales of shares
of Common Stock on all national securities exchanges on which the
Common Stock may at the time be listed or, if there shall have
been no sales on any such day, the average of the highest bid and
lowest asked prices on all such exchanges at the end of such day,
or, if on any day the Common Stock shall not be so listed, the
average of the representative bid and asked prices quoted in the
NASDAQ system as of 3:30 p.m., New York time, on such day, or, if
on any day the Common Stock shall not be quoted in the NASDAQ
system, the average of the high and low bid and asked prices on
such day in the over-the-counter market as reported by National
Quotation Bureau Incorporated, or any similar successor
organization. If at any time the Common Stock is not listed on
any national securities exchange or quoted in the NASDAQ system
or the over-the-counter market, the fair market value of the
shares of Common Stock subject to an Option on the date the ISO
is granted shall be the fair market value thereof determined in
good faith by the Board of Directors.
(b) ISOs, by their terms, shall not be transferable
otherwise than by will or the laws of descent and distribution,
and, during an Optionee's lifetime, an ISO shall be exercisable
only by the Optionee.
(c) The Board of Directors shall fix the term of all
ISOs granted pursuant to the Plan (including the date on which
such ISO shall expire and terminate), provided, however, that
such term shall in no event exceed ten years from the date on
5<PAGE>
which such ISO is granted (or, in the case of an ISO granted to
an Employee referred to in Section 4.3(b) hereof, such term shall
in no event exceed five years from the date on which such ISO is
granted). Each ISO shall be exercisable in such amount or
amounts, under such conditions and at such times or intervals or
in such installments as shall be determined by the Board of
Directors in its sole discretion, provided, however, that in no
event shall any ISO granted to any director or officer of the
Company who is subject to Section 16 of the Exchange Act become
exercisable, in whole or in part, prior to the date that is six
months after the date such ISO is granted to such director or
officer.
(d) To the extent that the Company or any Parent or
Subsidiary of the Company is required to withhold any Federal,
state or local taxes in respect of any compensation income
realized by any Participant as a result of any "disqualifying
disposition" of any shares of Common Stock acquired upon exercise
of an ISO granted hereunder, the Company shall deduct from any
payments of any kind otherwise due to such Participant the
aggregate amount of such Federal, state or local taxes required
to be so withheld or, if such payments are insufficient to
satisfy such Federal, state or local taxes, such Participant will
be required to pay to the Company, or make other arrangements
satisfactory to the Company regarding payment to the Company of,
the aggregate amount of any such taxes. All matters with respect
to the total amount of taxes to be withheld in respect of any
such compensation income shall be determined by the Board of
Directors in its sole discretion.
(e) In the sole discretion of the Board of Directors
the terms and conditions of any ISO may (but need not) include
any of the following provisions:
(i) In the event a Participant shall cease to be
employed by the Company or any Parent or Subsidiary of the
Company on a full-time basis for any reason other than as a
result of his death or "disability" (within the meaning of
Section 22(e)(3) of the Code), the unexercised portion of
any ISO held by such Participant at that time may only be
exercised within one month after the date on which the
Participant ceased to be so employed, and only to the extent
that the Participant could have otherwise exercised such ISO
as of the date on which he ceased to be so employed.
(ii) In the event a Participant shall cease to be
employed by the Company or any Parent or Subsidiary of the
Company on a full-time basis by reason of his "disability"
(within the meaning of Section 22(e)(3) of the Code), the
unexercised portion of any ISO held by such Participant at
that time may only be exercised within one year after the
date on which the Participant ceased to be so employed, and
only to the extent that the Participant could have otherwise
exercised such ISO as of the date on which he ceased to be
so employed.
(iii) In the event a Participant shall die while in the
full-time employ of the Company or a Parent or Subsidiary of
the Company (or within a period of one month after ceasing
to be an Employee for any reason other than his "disability"
or within a period of one year after ceasing to be an
Employee by reason of such "disability"), the unexercised
portion of any ISO held by such Participant at the time of
6<PAGE>
his death may only be exercised within one year after the
date of such Participant's death, and only to the extent
that the Participant could have otherwise exercised such ISO
at the time of his death. In such event, such ISO may be
exercised by the executor or administrator of the
Participant's estate or by any person or persons who shall
have acquired the ISO directly from the Participant by
bequest or inheritance.
6.2. Non-Qualified Options. The terms and conditions
of each Non-Qualified Option granted under the Plan shall be
specified by the Board of Directors, in its sole discretion, and
shall be set forth in a written option agreement between the
Company and the Participant in such form as the Board of
Directors shall approve. The terms and conditions of each Non-
Qualified Option will be such (and each Non-Qualified Option
Agreement shall expressly so state) that each Non-Qualified
Option issued hereunder shall not constitute nor be treated as an
"incentive stock option" as defined in Section 422(b) of the Code
but will be a "non-qualified stock option" for Federal, state and
local income tax purposes. The terms and conditions of any Non-
Qualified Option granted hereunder need not be identical to those
of any other Non-Qualified Option granted hereunder.
The terms and conditions of each Non-Qualified Option
Agreement shall include the following:
(a) The option (exercise) price shall be fixed by the
Board of Directors and may be equal to, more than or less than
100% of the fair market value of the shares of Common Stock
subject to the Non-Qualified Option on the date such Non-
Qualified Option is granted.
(b) The Board of Directors shall fix the term of all
Non-Qualified Options granted pursuant to the Plan (including the
date on which such Non-Qualified Option shall expire and
terminate). Such term may be more than ten years from the date
on which such Non-Qualified Option is granted. Each Non-
Qualified Option shall be exercisable in such amount or amounts,
under such conditions (including provisions governing the rights
to exercise such Non-Qualified Option), and at such times or
intervals or in such installments as shall be determined by the
Board of Directors in its sole discretion, provided, however,
that in no event shall any Non-Qualified Option granted to any
director or officer of the Company who is subject to Section 16
of the Exchange Act become exercisable, in whole or in part,
prior to the date that is six months after the date such Non-
Qualified Option is granted to such director or officer.
(c) Non-Qualified Options shall not be transferable
otherwise than by will or the laws of descent and distribution,
and during a Participant's lifetime a Non-Qualified Option shall
be exercisable only by the Participant.
(d) To the extent that the Company is required to
withhold any Federal, state or local taxes in respect of any
compensation income realized by any Participant in respect of a
Non-Qualified Option granted hereunder or in respect of any
shares of Common Stock acquired upon exercise of a Non-Qualified
Option, the Company shall deduct from any payments of any kind
otherwise due to such Participant the aggregate amount of such
Federal, state or local taxes required to be so withheld or, if
such payments are insufficient to satisfy such Federal, state or
7<PAGE>
local taxes, or if no such payments are due or to become due to
such Participant, then, such Participant will be required to pay
to the Company, or make other arrangements satisfactory to the
Company regarding payment to the Company of, the aggregate amount
of any such taxes. All matters with respect to the total amount
of taxes to be withheld in respect of any such compensation
income shall be determined by the Board of Directors in its sole
discretion.
7. TERMS AND CONDITIONS OF AWARDS. The terms and
conditions of each Award granted under the Plan shall be
specified by the Board of Directors, in its sole discretion, and
shall be set forth in a written agreement between the Participant
and the Company, in such form as the Board of Directors shall
approve. The terms and provisions of any Award granted hereunder
need not be identical to those of any other Award granted
hereunder.
The terms and conditions of each Award shall include
the following:
(a) The amount to be paid by a Participant to acquire
the shares of Common Stock pursuant to an Award shall be fixed by
the Board of Directors (or the Committee) and may be equal to,
more than or less than 100% of the fair market value of the
shares of Common Stock subject to the Award on the date the Award
is granted (but in no event less than the par value of such
shares).
(b) Each Award shall contain such vesting provisions,
such transfer restrictions and such other restrictions and
conditions as the Board of Directors, in its sole discretion, may
determine, including, without limitation, the circumstances under
which the Company shall have the right and option to repurchase
shares of Common Stock acquired pursuant to an Award.
(c) Stock certificates representing Common Stock
acquired pursuant to an Award shall bear a legend referring to
the restrictions imposed on such Stock and such other matters as
the Board of Directors may determine.
(d) To the extent that the Company is required to
withhold any Federal, state or local taxes in respect of any
compensation income realized by the Participant in respect of an
Award granted hereunder, or in respect of any shares acquired
pursuant to an Award, or in respect of the vesting of any such
shares of Common Stock, then the Company shall deduct from any
payments of any kind otherwise due to such Participant the
aggregate amount of such Federal, state or local taxes required
to be so withheld or, if such payments are insufficient to
satisfy such Federal, state or local taxes, or if no such
payments are due or to become due to such Participant, then, such
Participant will be required to pay to the Company, or make other
arrangements satisfactory to the Company regarding payment to the
Company of, the aggregate amount of any such taxes. All matters
with respect to the total amount of taxes to be withheld in
respect of any such compensation income shall be determined by
the Board of Directors in its sole discretion.
Section 8. ADJUSTMENTS. (a) In the event that, after
the adoption of the Plan by the Board of Directors, the
outstanding shares of the Company's Common Stock shall be
increased or decreased or changed into or exchanged for a
8<PAGE>
different number or kind of shares of stock or other securities
of the Company or of another corporation through reorganization,
merger or consolidation, recapitalization, reclassification,
stock split, split-up, combination or exchange of shares or
declaration of any dividends payable in Common Stock, the Board
of Directors shall appropriately adjust (i) the number of shares
of Common Stock (and the option price per share) subject to the
unexercised portion of any outstanding Option (to the nearest
possible full share), provided, however, that the limitations of
Section 424 of the Code shall apply with respect to adjustments
made to ISOs, (ii) the number of shares of Common Stock to be
acquired pursuant to an Award which have not become vested, and
(iii) the number of shares of Common Stock for which Options
and/or Awards may be granted under the Plan, as set forth in
Section 4.1 hereof, and such adjustments shall be effective and
binding for all purposes of the Plan.
(b) If any capital reorganization or reclassification
of the capital stock of the Company or any consolidation or
merger of the Company with another corporation, or the sale of
all or substantially all its assets to another corporation, shall
be effected in such a way that holders of Common Stock shall be
entitled to receive stock, securities or assets with respect to
or in exchange for Common Stock, then, subject to Section 8(c)
below, each holder of an Option shall thereafter have the right
to receive upon the basis and upon the terms and conditions
specified therein and in lieu of the shares of Common Stock of
the Company immediately theretofore receivable upon the exercise
of such Option, such shares of stock, securities or assets
(including cash) as may be issued or payable with respect to or
in exchange for a number of outstanding shares of such Common
Stock equal to the number of shares of such stock immediately
theretofore so receivable had such reorganization, reclassifica-
tion, consolidation, merger or sale not taken place.
(c) Notwithstanding the foregoing (but subject to the
express provisions of any option agreement), in the event of
(i) any offer to holders of the Company's Common Stock generally
relating to the acquisition of their shares, including, without
limitation, through purchase, merger or otherwise, or (ii) any
transaction generally relating to the acquisition of
substantially all of the assets or business of the Company
(herein sometimes referred to as an "Acquisition"), the Board of
Directors may, in its sole discretion, cancel any outstanding
Options (provided, however, that the limitations of Section 424
of the Code shall apply with respect to adjustments made to
ISO's) and pay or deliver, or cause to be paid or delivered, to
the holder thereof, an amount in cash or securities having a
value (as determined by the Board of Directors acting in good
faith) equal to the product of (A) the number of Option Shares
that, as of the date of the consummation of such Acquisition, the
holder of such Option had become entitled to purchase (and had
not purchased), multiplied by (B) the amount, if any, by which
(1) the formula or fixed price per share paid to holders of
shares of Common Stock pursuant to such Acquisition exceeds
(2) the option price applicable to such Option Shares.
Section 9. EFFECT OF THE PLAN ON EMPLOYMENT
RELATIONSHIP. Neither the Plan nor any Option and/or Award
granted hereunder to a Participant shall be construed as
conferring upon such Participant any right to continue in the
employ of (or otherwise provide services to) the Company or any
Subsidiary or Parent thereof, or limit in any respect the right
9<PAGE>
of the Company or any Subsidiary or Parent thereof to terminate
such Participant's employment or other relationship with the
Company or any Subsidiary or Parent, as the case may be, at any
time.
Section 10. AMENDMENT OF THE PLAN. The Board of
Directors may amend the Plan from time to time as it deems
desirable; provided, however, that, without the approval of the
holders of a majority of the outstanding stock of the Company
entitled to vote thereon at a meeting, the Board of Directors may
not amend the Plan (i) to increase (except for increases due to
adjustments in accordance with Section 8 hereof) the aggregate
number of shares of Common Stock for which Options and/or Awards
may be granted hereunder, (ii) to decrease the minimum exercise
price specified by the Plan in respect of ISOs, or (iii) to
change the class of Employees eligible to receive ISOs under the
Plan.
Section 11. TERMINATION OF THE PLAN. The Board of
Directors may terminate the Plan at any time. Unless the Plan
shall theretofore have been terminated by the Board of Directors,
the Plan shall terminate ten years after the date of its initial
adoption by the Board of Directors. No Option and/or Award may
be granted hereunder after termination of the Plan. The
termination or amendment of the Plan shall not alter or impair
any rights or obligations under any Option and/or Award
theretofore granted under the Plan.
Section 12. EFFECTIVE DATE OF THE PLAN. The Plan
shall be effective as of June 27, 1994, the date on which the
Plan was adopted by the Board of Directors of the Company and the
Stockholders of the Company by written consent.
10
HOUSECALL MEDICAL RESOURCES, INC.
AND ITS SUBSIDIARIES
1996 STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
Section 1. PURPOSE. The purpose of the Housecall Medical Resources,
Inc. and its Subsidiaries 1996 Stock Option and Restricted Stock Purchase
Plan (the "Plan") is to promote the interests of Housecall Medical
Resources Inc., a Delaware corporation (the "Company"), and any
subsidiary thereof and the interests of the Company's stockholders by
providing an opportunity to selected employees, officers and directors of
the Company or any Subsidiary thereof as of the date of the adoption of
the Plan or at any time thereafter to purchase Common Stock of the
Company. By encouraging such stock ownership, the Company seeks to
attract, retain and motivate such employees and persons and to encourage
such employees and persons to devote their best efforts to the business
and financial success of the Company. It is intended that this purpose
will be effected by the granting of "non-qualified stock options" and/or
"incentive stock options" to acquire the Common Stock of the Company
and/or by the granting of rights to purchase the Common Stock of the
Company on a "restricted stock" basis. Under the Plan, the Board of
Directors shall have the authority (in its sole discretion) to grant
"incentive stock options" within the meaning of Section 422(b) of the
Code, "non-qualified stock options" as described in Treasury Regulation
Section 1.83-7 or any successor regulation thereto, or "restricted stock"
awards.
Section 2. DEFINITIONS. For purposes of the Plan, the following
terms used herein shall have the following meanings, unless a different
meaning is clearly required by the context.
2.1. "Award" shall mean an award of the right to purchase Common
Stock granted under the provisions of Section 7 of the Plan.
2.2. "Board of Directors" shall mean the Board of Directors of the
Company.
2.3. "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.4. "Committee" shall mean the committee of the Board of Directors
referred to in Section 5 hereof.
2.5. "Common Stock" shall mean the Common Stock, $.01 par value, of
the Company.
2.6. "Employees" shall mean (i) with respect to an ISO, any person,
including an officer or director of the Company, who at the time an ISO
is granted to such person hereunder, is employed on a full-time basis by
the Company or any Subsidiary of the Company, and (ii) with respect to a
Non-Qualified Option and/or an Award, any person employed by, or
performing services for, the Company or any Subsidiary of the Company,
including, without limitation, directors and officers.
2.7. "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
2.8. "ISO" shall mean an option granted to a Participant pursuant to
the Plan that constitutes and shall be treated as an "incentive stock
option" as defined in section 422(b) of the Code.
2.9. "Non-Qualified Option" shall mean an option granted to a
Participant pursuant to the Plan that is intended to be, and qualifies<PAGE>
as, a "non-qualified stock option" as described in Treasury Regulation
Section 1.83-7 or any successor regulation thereto and that shall not
constitute nor be treated as an ISO.
2.10. "Option" shall mean any ISO or Non-Qualified Option granted
to an Employee pursuant to the Plan.
2.11. "Optionee" shall mean any Employee to whom an Option has been
granted under the Plan.
2.12. "Participant" shall mean any Employee to whom an Award and/or
an Option is granted under the Plan.
2.13. "Parent of the Company" shall have the meaning set forth in
Section 424(e) of the Code.
2.14. "Subsidiary of the Company" shall have the meaning set forth
in Section 424(f) of the Code.
Section 3. ELIGIBILITY. Awards and/or Options may be granted to any
Employee. The Committee shall have the sole authority to select the
persons to whom Awards and/or Options are to be granted hereunder, and to
determine whether a person is to be granted a Non-Qualified Option, an
ISO or an Award or any combination thereof. No person shall have any
right to participate in the Plan. By virtue of the selection of a
Participant for any particular period, the Committee shall not be
obligated to select that Participant for a grant of an Award or Option
for any other period.
Section 4. COMMON STOCK SUBJECT TO THE PLAN.
4.1. Number of Shares. The total number of shares of Common Stock
for which Options and/or Awards may be granted under the Plan shall not
exceed in the aggregate Five Hundred Thousand (500,000) shares of Common
Stock (subject to adjustment as provided in Section 8 hereof).
4.2. Reissuance. The shares of Common Stock that may be subject to
Options and/or Awards granted under the Plan may be either authorized and
unissued shares or shares reacquired at any time and now or hereafter
held as treasury stock, as the Board of Directors may determine. In the
event that any outstanding Option expires or is terminated for any
reason, the shares allocable to the unexercised portion of such Option
may again be subject to an Option and/or Award granted under the Plan.
If any shares of Common Stock acquired pursuant to an Award or the
exercise of an Option shall have been repurchased by the Company, then
such shares shall again become available for issuance pursuant to the
Plan.
4.3. Special ISO Limitations.
(a) The aggregate fair market value (determined as of the date an
ISO is granted) of the shares of Common Stock with respect to which ISOs
are exercisable for the first time by an Employee during any calendar
year (under all Incentive Stock Option Plans of the Company or any Parent
or Subsidiary of the Company) shall not exceed $100,000.
(b) No ISO shall be granted to an Employee who, at the time the ISO
is granted, owns (actually or constructively under the provisions of
Section 424(d) of the Code) stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any
Parent or Subsidiary of the Company, unless the Option price is at least
110% of the fair market value (determined as of the time the ISO is
granted) of the shares of Common Stock subject to the ISO and the ISO by
2
<PAGE>
its terms is not exercisable more than five years from the date it is
granted.
4.4. Limitations Not Applicable to Non-Qualified Options or Awards.
Notwithstanding any other provision of the Plan, the provisions of
Sections 4.3(a) and (b) shall not apply, nor shall be construed to apply,
to any Non-Qualified Option or Award granted under the Plan.
Section 5. ADMINISTRATION OF THE PLAN.
5.1. Administration. The Plan shall be administered by the
Compensation Committee of the Board of Directors or by any other
Committee appointed by the Board that is granted authority to administer
the plan; provided, however, that the Committee shall be comprised solely
of Directors who are eligible to administer the Plan pursuant to Rule
16b-3(c)(2) or any successor provision under the Exchange Act. If for
any reason any member of the Committee does not qualify to administer the
Plan, as contemplated by Rule 16b-3(c)(2) or any successor provision of
the Exchange Act, the Board of Directors may appoint a new Committee
member who complies with such provision of the Exchange Act. The members
of the Committee shall be appointed from time to time by, and shall serve
at the pleasure of, the Board of Directors.
5.2. Grant of Options/Awards.
(a) Options. The Committee shall have the sole authority and
discretion under the Plan (i) to select the Employees who are to be
granted Options hereunder; (ii) to designate whether any Option to be
granted hereunder is to be an ISO or a Non-Qualified Option; (iii) to
establish the number of shares of Common Stock that may be issued under
each Option; (iv) to determine the time and the conditions subject to
which Options may be exercised in whole or in part; (v) to determine the
form of the consideration that may be used to purchase shares of Common
Stock upon exercise of any Option (including the circumstances under
which the Company's issued and outstanding shares of Common Stock may be
used by a Participant to exercise an Option); (vi) to impose restrictions
and/or conditions with respect to shares of Common Stock acquired upon
exercise of an Option; (vii) to determine the circumstances under which
shares of Common Stock acquired upon exercise of any Option may be
subject to repurchase by the Company; (viii) to determine the
circumstances and conditions subject to which shares acquired upon
exercise of an Option may be sold or otherwise transferred, including,
without limitation, the circumstances and conditions subject to which a
proposed sale of shares of Common Stock acquired upon exercise of an
Option may be subject to the Company's right of first refusal (as well as
the terms and conditions of any such right of first refusal); (ix) to
establish a vesting provision for any Option relating to the time when
(or the circumstances under which) the Option may be exercised by a
Participant, including, without limitation, vesting provisions that may
be contingent upon (A) the Company meeting specified financial goals, (B)
a change of control of the Company or (C) the occurrence of other
specified events; (x) to accelerate the time when outstanding Options may
be exercised, provided, however, that any ISOs shall be "accelerated"
within the meaning of Section 424(h) of the Code; and (xi) to establish
any other terms, restrictions and/or conditions applicable to any Option
not inconsistent with the provisions of the Plan. Notwithstanding
anything in the Plan to the contrary, in no event shall any Option
granted to any director or officer of the Company who is subject to
Section 16 of the Exchange Act become exercisable, in whole or in part,
prior to the date that is six months after the date such Option is
granted to such director or officer.
(b) Awards. The Committee shall have the sole authority and
3
<PAGE>
discretion under the Plan (i) to select the Employees who are to be
granted Awards hereunder; (ii) to determine the amount to be paid by a
Participant to acquire shares of Common Stock pursuant to an Award, which
amount may be equal to, more than, or less than 100% of the fair market
value of such shares on the date the Award is granted (but in no event
less than the par value of such shares); (iii) to determine the time or
times and the conditions subject to which Awards may be made; (iv) to
determine the time or times and the conditions subject to which the
shares of Common Stock subject to an Award are to become vested and no
longer subject to repurchase by the Company; (v) to establish transfer
restrictions and the terms and conditions on which any such transfer
restrictions with respect to shares of Common Stock acquired pursuant to
an Award shall lapse; (vi) to establish vesting provisions with respect
to any shares of Common Stock subject to an Award, including, without
limitation, vesting provisions which may be contingent upon (A) the
Company meeting specified financial goals, (B) a change of control of the
Company or (C) the occurrence of other specified events; (vii) to
determine the circumstances under which shares of Common Stock acquired
pursuant to an Award may be subject to repurchase by the Company; (viii)
to determine the circumstances and conditions subject to which any shares
of Common Stock acquired pursuant to an Award may be sold or otherwise
transferred, including, without limitation, the circumstances and
conditions subject to which a proposed sale of shares of Common Stock
acquired pursuant to an Award may be subject to the Company's right of
first refusal (as well as the terms and conditions of any such right of
first refusal); (ix) to determine the form of consideration that may be
used to purchase shares of Common Stock pursuant to an Award (including
the circumstances under which the Company's issued and outstanding shares
of Common Stock may be used by a Participant to purchase the Common Stock
subject to an Award); (x) to accelerate time at which any or all
restrictions imposed with respect to any shares of Common Stock subject
to an Award will lapse; and (xi) to establish any other terms,
restrictions and/or conditions applicable to any Award not inconsistent
with the provisions of the Plan.
5.3. Interpretation. The Committee shall be authorized to interpret
the Plan and may, from time to time, adopt such rules and regulations,
not inconsistent with the provisions of the Plan, as it may deem
advisable to carry out the purposes of the Plan.
5.4. Finality. The interpretation and construction by the Committee
of any provision of the Plan, any Option and/or Award granted hereunder
or any agreement evidencing any such Option and/or Award shall be final
and conclusive upon all parties.
5.5. Expenses, Etc. All expenses and liabilities incurred by the
Committee in the administration of the Plan shall be borne by the
Company. The Board of Directors may employ attorneys, consultants,
accountants or other persons in connection with the administration of the
Plan. The Company, and its officers and directors, shall be entitled to
rely upon the advice, opinions or valuations of any such persons.
5.6. Indemnification. Each person who is or shall have been a member
of the Committee, or the Board of Directors, shall be indemnified and
held harmless by the Company against and from any loss, cost, liability
or expense that may be imposed upon or reasonably incurred by him or her
in connection with or resulting from any claim, action, suit or
proceeding to which he or she may be a party or in which he or she may be
involved by reason of any action taken or failure to act under the Plan
and against and from any and all amounts paid by him or her in settlement
thereof, with the Company's approval, or paid by him or her in
satisfaction of any judgment in any such action, suit or proceeding
against him or her, provided he or her shall give the Company an
4
<PAGE>
opportunity, at its own expense, to handle and defend the same before he
or she undertakes to handle and defend it on his or her own behalf and
provided further that any such action taken or failure to act under the
Plan was made in good faith. The foregoing right of indemnification
shall be in addition to any of the rights of indemnification to which
such persons may entitled under the Company's Certificate of
Incorporation or Bylaws, as a matter of law, or otherwise, or any power
that the Company may have to indemnify them or hold them harmless.
Section 6. TERMS AND CONDITIONS OF OPTIONS.
6.1. ISOs. The terms and conditions of each ISO granted under the
Plan shall be specified by the Committee and shall be set forth in an ISO
agreement between the Company and the Participant in such form as the
Committee shall approve. The terms and conditions of each ISO shall be
such that each ISO issued hereunder shall constitute and shall be treated
as an "incentive stock option" as defined in Section 422(b) of the Code.
The terms and conditions of any ISO granted hereunder need not be
identical to those of any other ISO granted hereunder.
The terms and conditions of each ISO shall include the following:
(a) The Option price shall be fixed by the Committee but shall in no
event be less than 100% (or 110% in the case of an Employee referred to
in Section 4.3(b) hereof) of the fair market value of the shares of
Common Stock subject to the ISO on the date the ISO is granted. For
purposes of the Plan, the fair market value per share of Common Stock as
of any day shall mean the average of the closing prices of sales of
shares of Common Stock on all national securities exchanges and The
Nasdaq National Market System ("NMS") on which the Common Stock may at
the time be listed or, if there shall have been no sales on any such day,
the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, if on any day the Common Stock
shall not be so listed the average of the representative bid and asked
prices quoted in NMS as of 3:30 p.m., New York time, on such day, or, if
on any day the Common Stock shall not be quoted in the NMS, the average
of the high and low bid and asked prices on such day in the over-the-
counter market an reported by National Quotation Bureau Incorporated, or
any similar successor organization. If at any time the Common Stock is
not listed on any national securities exchange or quoted in NMS or the
over-the-counter market, the fair market value of the shares of Common
Stock subject to an Option on the date the ISO is granted shall be the
fair market value thereof determined in good faith by the Committee.
(b) ISOs by their terms, shall not be transferable otherwise than by
will or the laws of descent and distribution, and, during an Optionee's
lifetime, an ISO shall be exercisable only by the Optionee.
(c) The Committee shall fix the term of all ISOs granted pursuant to
the Plan (including the date on which such ISO shall expire and
terminate), provided, however, that such term shall in no event exceed
ten years from the date on which such ISO is granted (or, in the case of
an ISO granted to an Employee referred to in Section 4.3(b) hereof, such
term shall in no event exceed five years from the date on which such ISO
is granted). Each ISO shall be exercisable in such amount or amounts,
under such conditions and at such times or intervals or in such
installments as shall be determined by the Committee in its sole
discretion, provided, however, that in no event shall any ISO granted to
any director or officer of the Company who is subject to Section 16 of
the Exchange Act become exercisable, in whole or in part, prior to the
date that is six months after the date such ISO is granted to such
director or officer.
5
<PAGE>
(d) To the extent that the Company or any Parent or Subsidiary of
the Company is required to withhold any Federal, state or local taxes in
respect of any compensation income realized by any Participant as a
result of any "disqualifying disposition" (a disposition not satisfying
the holding period requirements of Section 421(a) of the Code) of any
shares of Common Stock acquired upon exercise of an ISO granted
hereunder, the Company shall deduct from any payments of any kind
otherwise due to such Participant the aggregate amount of such Federal,
state or local taxes required to be so withheld or, if such payments are
insufficient to satisfy such Federal, state or local taxes, such
Participant will be required to pay to the Company, or make other
arrangements satisfactory to the Company regarding payment to the Company
of, the aggregate amount of any such taxes. All matters with respect to
the total amount of taxes to be withhold in respect of any such
compensation income shall be determined by the Committee in its sole
discretion.
(e) In the sole discretion of the Committee, the terms and
conditions of any ISO may (but need not) include any of the following
provisions;
(i) In the event a Participant shall cease to be employed by the
company or any Parent or Subsidiary of the Company on a full-time
basis for any reason other than as a result of his death or
"disability" (within the meaning of Section 22(e)(3) of the Code), the
unexercised portion of any ISO held by such Participant at that time
may only be exercised within one month after the date on which the
Participant ceased to be so employed, and only to the extent that the
Participant could have otherwise exercised such ISO as of the date on
which he ceased to be so employed.
(ii) In the event a Participant shall cease to be employed by the
Company or any Parent or Subsidiary of the company on a full-time
basis by reason of his "disability" (within the meaning of Section
22(e)(3) of the Code), the unexercised portion of any ISO held by such
Participant at that time may only be exercised within one year after
the date on which the Participant ceased to be so employed, and only
to the extent that the Participant could have otherwise exercised such
ISO as of the date on which he ceased to be so employed.
(iii) In the event a Participant shall die while in the full-
time employ of the Company or a Parent or Subsidiary of the Company
(or within a period of one month after ceasing to be an Employee for
any reason other than his "disability" or within a period of one year
after ceasing to be an Employee by reason of such "disability"), the
unexercised portion of any ISO hold by such Participant at the time of
his death may only be exercised within one year after the date of such
Participant's death, and only to the extent that the Participant could
have otherwise exercised such ISO at the time of his death. In such
event such ISO may be exercised by the executor or administrator of
the Participant's estate or by any person or persons who shall have
acquired the ISO directly from the Participant by bequest or
inheritance.
6.2. Non-Qualified Options. The terms and conditions of each Non-
Qualified Option granted under the Plan shall be specified by the
Committee, in its sole discretion, and shall be set forth in a written
option agreement between the Company and the Participant in such form as
the Board of Directors shall approve. The terms and conditions of each
Non-Qualified Option will be such (and each Non-Qualified Option
Agreement shall expressly so state) that each Non-Qualified Option issued
hereunder shall not constitute nor be treated as an "incentive stock
option" as defined in Section 422(b) of the Code but will be a "non-
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qualified stock option" for Federal, state and local income tax purposes.
The terms and conditions of any Non-Qualified Option granted hereunder
need not be identical to those of any other Non-Qualified Option granted
hereunder.
The terms and conditions of each Non-Qualified Option Agreement shall
include the following:
(a) The Option (exercise) price shall be fixed by the Committee and
may be equal to more than or less than the fair market value of the
shares of Common Stock subject to the Non-Qualified Option on the date
such Non-Qualified Option is granted.
(b) The Committee shall fix the term of all Non-Qualified Options
granted pursuant to the Plan (including the date on which such Non-
Qualified Options shall expire and terminate). Such term may be more
than ten years from the date on which such Non-Qualified Option is
granted. Each Non-Qualified Option shall be exercisable in such amount
or amounts, under such conditions (including provisions governing the
rights to exercise such Non-Qualified Option), and at such times or
intervals or in such installments as shall be determined by the Board of
Directors in its sole discretion, provided, however, that in no event
shall any Non-Qualified Option granted to any director or officer of the
Company who is subject to Section 16 of the Exchange Act become
exercisable, in whole or in part, prior to the date that is six months
after the date such Non-Qualified Option is granted to such director or
officer.
(c) Non-Qualified Options shall not be transferable otherwise than
by will or the laws of descent and distribution, and during a
Participant's lifetime a Non-Qualified Option shall be exercisable only
by the Participant.
(d) To the extent that the Company is required to withhold any
Federal, state or local taxes in respect of any compensation income
realized by any Participant in respect of a Non-Qualified Option granted
hereunder or in respect of any shares of Common Stock acquired upon
exercise of a Non-Qualified Option, the Company shall deduct from any
payments of any kind otherwise due to such Participant the aggregate
amount of such Federal, state or local taxes required to be so withheld
or, if such payments are insufficient to satisfy such Federal, state or
local taxes, or if no such payments are due or to become due to such
Participant, then, such Participant will be required to pay to the
Company, or make other arrangements satisfactory to the Company regarding
payment to the Company of the aggregate amount of any such taxes. All
matters with respect to the total amount of taxes to be withheld in
respect of any such compensation income shall be determined by the Board
of Directors in its sole discretion.
Section 7. TERMS AND CONDITIONS OF AWARDS. The terms and conditions
of each Award granted under the Plan shall be specified by the Committee,
in its sole discretion, and shall be set forth in a written agreement
between the Participant and the Company, in such form as the Committee
shall approve. The terms and provisions of any award granted hereunder
need not be identical to those of any other Award granted hereunder.
The terms and conditions of each Award shall include the following:
(a) The amount to be paid by a Participant to acquire the shares of
Common Stock pursuant to an Award shall be fixed by the Committee and may
be equal to, more than or less than the fair market value of the shares
of Common Stock subject to the Award on the date the Award is granted
(but in no event less than the par value of such shares).
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(b) Each Award shall contain such vesting provisions, such transfer
restrictions and such other restrictions and conditions as the Committee,
in its sole discretion, may determine, including, without limitation, the
circumstances under which the Company shall have the right and option to
repurchase shares of Common Stock acquired pursuant to an Award.
(c) Stock certificates representing Common Stock acquired pursuant
to an Award shall bear a legend referring to the restrictions imposed on
such Stock and such other matters as the Committee may determine.
(d) To the extent that the Company is required to withhold any
Federal, state or local taxes in respect of any compensation income
realized by the Participant in respect of an Award granted hereunder, or
in respect of any shares acquired pursuant to an Award, or in respect of
the vesting of any such shares of Common Stock, then the Company shall
deduct from any payments of any kind otherwise due to such Participant
the aggregate amount of such Federal, state or local taxes required to be
so withheld or, if such payments are insufficient to satisfy such
Federal, state or local taxes, or if no such payments are due or to
become due to such Participant, then, such Participant will be required
to pay to the Company, or make other arrangements satisfactory to the
Company regarding payment to the Company of, the aggregate amount of any
such taxes. All matters with respect to the total amount of taxes to be
withheld in respect of any such compensation income shall be determined
by the Board of Directors in its sole discretion.
Section 8. ADJUSTMENTS. (a) In the event that, after the adoption of
the Plan by the Board of Directors, the outstanding shares of the
Company's Common Stock shall be increased or decreased or changed into or
exchanged for a different number or kind of shares of stock or other
securities of the Company or of another corporation through
reorganization, merger or consolidation, recapitalization,
reclassification, stock split, split-up, combination or exchange of
shares or declaration of any dividends payable in Common Stock, the
Committee shall appropriately adjust (i) the number of shares of Common
Stock (and the Option price per share) subject to the unexercised portion
of any outstanding Option (to the nearest possible full share), provided,
however, that the limitations of Section 424 of the Code shall apply with
respect to adjustments made to ISOs, (ii) the number of shares of Common
Stock to be acquired pursuant to an Award which have not become vested,
and (iii) the number of shares of Common Stock for which Options and/or
Awards may be granted under the Plan, as set forth in Section 4.1 hereof,
and such adjustments shall be effective and binding for all purposes of
the Plan.
(b) If any capital reorganization or reclassification of the capital
stock of the Company or any consolidation or merger of the Company with
another corporation, or the sale of all or substantially all its assets
to another corporation, shall be effected in such a way that holders of
Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock then, subject to Section
8(c) below, each holder of an Option shall thereafter have the right to
receive upon the basis and upon the terms and conditions specified
therein and in lieu of the shares of Common Stock of the Company
immediately theretofore receivable upon the exercise of such Option, such
shares of stock, securities or assets (including cash) as may be issued
or payable with respect to or in exchange for a number of outstanding
shares of such Common Stock equal to the number of shares of such stock
immediately theretofore so receivable had such reorganization,
reclassification, consolidation, merger or sale not taken place.
(c) Notwithstanding the foregoing (but subject to the express
provisions of any Option agreement), in the event of (i) any offer to
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holders of the Company's Common Stock generally relating to the
acquisition of their shares, including, without limitation, through
purchase, merger or otherwise, or (ii) any transaction generally relating
to the acquisition of substantially all of the assets or business of the
Company (herein sometimes referred to as an "Acquisition"), the Committee
may, in its sole discretion, cancel any outstanding Options, provided,
however, that the limitations of Section 424 of the Code shall apply with
respect to adjustments made to ISO's, and pay or deliver, or cause to be
paid or delivered, to the holder thereof, an amount in cash or securities
having a value (as determined by the Committee acting in good faith)
equal to the product of (A) the number of Option Shares that, as of the
date of the consummation of such Acquisition, the holder of such Option
had become entitled to purchase (and had not purchased), multiplied by
(B) the amount, if any, by which (1) the formula or fixed price per share
paid to holders of shares of Common Stock pursuant to such Acquisition
exceeds (2) the Option price applicable to such Option Shares.
Section 9. EFFECT OF THE PLAN ON EMPLOYMENT RELATIONSHIP. Neither
the Plan nor any Option and/or Award granted hereunder to a Participant
shall be construed as conferring upon such Participant any right to
continue in the employ of (or otherwise provide services to) the Company
or any Subsidiary or Parent thereof, or limit the right of the Company or
any Subsidiary or Parent thereof to terminate such Participant's
employment or other relationship with the Company or any Subsidiary or
Parent, as the case may be, at any time.
Section 10. AMENDMENT, MODIFICATION, AND TERMINATION OF THE PLAN. The
Board of Directors may, at any time and from time to time, alter, amend,
suspend or terminate the Plan in whole or in part; provided, that, unless
approved by the holders of a majority of the total number of shares of
Common Stock represented and voted at a meeting at which a quorum is
present, no amendment shall be made to the Plan if such amendment would
(i) materially modify the eligibility requirements provided in Section 3;
(ii) increase the total number of shares of Common Stock (except as
provided in Section 8) which may be granted under the Plan, as provided
in Section 4.1; (iii) extend the term of the Plan; or (iv) amend the Plan
in any other manner which the Board of Directors, in its discretion,
determines should become effective only if approved by the stockholders
even though such stockholder approval is not expressly required by the
Plan or by law. No amendment which requires stockholder approval in
order for the Plan to continue to comply with Rule 16b-3 or any successor
rule under the Exchange Act shall be effective unless such amendment
shall be approved by the requisite vote of stockholders.
Section 11. EFFECTIVE DATE OF THE PLAN. The Plan shall be effective
on the date it is adopted by the Board of Directors (the "Effective
Date"), subject to approval of the Plan by the stockholders within the
12-month period immediately thereafter, and shall remain in effect until
the tenth anniversary of the Effective Date, unless sooner terminated by
the Board of Directors. No Option and/or Award may be granted hereunder
after termination of the Plan. The termination or amendment of the Plan
shall not alter or impair any rights or obligations under any Option
and/or Award theretofore granted under the Plan.
Section 12. COMPLIANCE WITH CODE SECTION 162(M). At all times when
the Committee determines that compliance with Code Section 162(m) is
desired, all Options and Awards granted under this Plan shall comply with
the requirements of Code Section 162(m) or any successor thereto. In
addition, in the event that changes are made to Code Section 162(m) to
permit greater flexibility with respect to any Option or Award under the
Plan, the Committee may make any adjustments it deems appropriate.
Section 13. REGULATORY APPROVALS AND LISTING. The Company shall not
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be required to issue any certificate or certificates for shares of Common
Stock under the Plan prior to (i) obtaining any approval from any
governmental agency which the Company shall, in its discretion, determine
to be necessary or advisable, (ii) the admission of such shares to
listing on any national securities exchange or the NMS on which the
Company's shares of Common Stock may be listed, and (iii) the completion
of any registration or other qualification or exemption filing with
respect to such shares of Common Stock under any state or federal law or
ruling or regulation of any governmental body which the Company shall, in
its sole discretion, determine to be necessary or advisable.
Section 14. SUCCESSORS. All obligations of the Company under the
Plan, with respect to Options and Awards granted hereunder, shall be
binding on any successor to the Company, whether the existence of such
successor is a result of a direct or indirect purchase, merger,
consolidation or otherwise, of all or substantially all of the business
and/or assets of the Company.
Section 15. SECURITIES LAW COMPLIANCE. With respect to officers and
directors of the Company subject to Section 16 or any successor provision
under the Exchange Act, transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successor
under the Exchange Act. To the extent any provision of the Plan or
action by the Committee fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable by the
Committee.
10
EXHIBIT 5
KILPATRICK & CODY
1100 PEACHTREE STREET
ATLANTA, GEORGIA 30309
Telephone No. (404) 815-6500
Fax No. (404) 815-6555
June 27, 1996
Housecall Medical Resources, Inc.
1000 Abernathy Road
Building 400, Suite 1825
Atlanta, Georgia 30328
Re: Form S-8 Registration Statement - 1,717,702 Shares of Common
Stock
Gentlemen:
At your request, we have acted as counsel for Housecall
Medical Resources, Inc., a Delaware corporation (the "Company"),
in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") relating to the Company's 1996 Stock
Option and Restricted Stock Purchase Plan, the Company's [1994]
Stock Option and Restricted Stock Purchase Plan, and the Company's
Performance Stock Option and Restricted Stock Purchase Plan
(collectively, the "Plans") and the proposed offer and sale of
up to 1,717,702 shares of the Company's Common Stock, $0.01 par
value per share (the "Shares") pursuant thereto.
In connection with the preparation of said Registration State-
ment, we have examined originals or copies of such corporate records,
documents and other instruments relating to the authorization and
issuance of the Shares as we have deemed relevant under the circumstances.
On the basis of the foregoing, it is our opinion that:
The Shares, when issued in accordance with the terms and
conditions of the Plans, will be legally and validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit
to said Registration Statement and further consent to the use of our
name under the heading "Legal Matters" in said Registration
Statement.
Sincerely,
KILPATRICK & CODY
By: /s/ W. Randy Eaddy
-------------------------
W. Randy Eaddy,
a Partner
Exhibit 23
CONSENT OF INDEPENDENT AUDITORS
--------------------------------
We consent to the incorporation by reference in the Registration
Statement (Form S-8 No. 333-_______) pertaining to the Housecall
Medical Resources, Inc. and its Subsidiaries 1996 Stock Option
and Restricted Stock Purchase Plan; Housecall Medical Resources,
Inc. and its Subsidiaries (1994) Stock Option and Restricted Stock
Purchase Plan; and Housecall Medical Resources, Inc. and its Subsidiaries
Performance Stock Option and Restricted Stock Purchase Plan of our report
dated November 2, 1995 except for the second and third paragraphs of Note 10,
as to which the date is January 25, 1996, with respect to the consolidated
financial statements of Housecall Medical Resources, Inc. included in its
Registration Statement (Form S-1, No. 333-688) and related Prospectus dated
April 3, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
----------------------------------
Ernst & Young LLP
Atlanta, Georgia
June 25, 1996
