<PAGE> 1
As Filed with the Securities and Exchange Commission on June ____, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
INTENSIVA HEALTHCARE CORPORATION
(Exact name of registrant as specified in charter)
DELAWARE 43-1690769
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
7733 FORSYTH BOULEVARD, SUITE 800
ST. LOUIS, MISSOURI 63105
(Address of principal executive offices) (Zip Code)
INTENSIVA HEALTHCARE CORPORATION
STOCK OPTION PLAN
(Full titles of the plans)
------------------------
DAVID W. CROSS, PRESIDENT
INTENSIVA HEALTHCARE CORPORATION
7733 FORSYTH BOULEVARD, SUITE 800
ST. LOUIS, MISSOURI 63105
(Name and address of agent for service)
(314) 725-0112
(Telephone number, including area code, of agent for service)
------------------------
Copies to:
LARRY K. HARRIS
SUELTHAUS & WALSH, P.C.
7733 FORSYTH BOULEVARD, 12TH FLOOR
ST. LOUIS, MISSOURI 63105
(314) 727-7676
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered Amount to be Proposed Maximum Proposed Maximum Amount of Registration Fee
Registered(1) Offering Price Per Aggregate Offering
Share(1) Price(1)
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<S> <C> <C> <C> <C>
Common Stock $0.001 par value 785,400 $7.9375 $6,234,112.50 $2,011
==================================================================================================================================
</TABLE>
(1) Estimated solely for purposes of computing the Registration Fee pursuant to
the provisions of Rule 457(h), based upon a price of $ per share, being the
average of the average of the high and low prices per share reported on
the Nasdaq Stock Market National Market System on June 17, 1997.
<PAGE> 2
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Intensiva HealthCare Corporation (the
"COMPANY") with the Securities and Exchange Commission (the "SEC") are
incorporated herein by reference:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996; and
(ii) The description of the Company's Common Stock $0.001 par
value per share, set forth in the Company's Registration Statement
on Form S-1 (Reg. No. 333-08899), filed with the SEC on July 25,
1996, and any amendment or report filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
made a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated herein by reference shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained in a subsequently filed document
incorporated herein by reference modifies or supersedes such document. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Where any document or part thereof is incorporated by reference in this
Registration Statement, the Company will provide without charge to each person
to whom a Prospectus with respect to the Intensiva HealthCare Corporation Stock
Option Plan is delivered, upon written or oral request of such person, a copy
of any and all of the information incorporated by reference in the Registration
Statement, excluding exhibits unless such exhibits are specifically
incorporated by reference.
Item 4. Description of Securities. See Item 3(ii) above.
Item 5. Interests of Named Experts and Counsel. Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company's Third Amended and Restated Certificate of Incorporation
(the "CERTIFICATE OF INCORPORATION") contains a provision eliminating or
limiting director liability to the Company and its stockholders for monetary
damages arising from acts or omissions in the director's capacity as a director.
The provision does not, however, eliminate or limit the personal liability of a
director (i) for any breach of such director's duty of loyalty to the Company 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 the Delaware
statutory provision making directors personally liable, under a negligence
standard, for unlawful dividends or unlawful stock purchases or redemptions or
(iv) for any transaction from which the director derived an improper personal
benefit. This provision offers persons who serve on the Board of Directors of
the Company protection against awards of monetary damages resulting from
breaches of their duty of care (except as indicated above). As a result of this
provision, the ability of the Company or a stockholder thereof to successfully
prosecute an action against a director for a breach of his duty of care is
limited. However, the provision does not affect the availability of equitable
remedies such as an injunction or rescission based upon a director's breach of
the duty of care. The Securities and Exchange Commission (the "COMMISSION") has
taken the position that the provision will have no effect on claims arising
under the federal securities laws.
In addition, the Certificate of Incorporation and the Amended and
Restated By-laws (the "BY-LAWS") provide for mandatory indemnification rights,
subject to limited exceptions, for any director or officer of the
Registration Statement on Form S-8 Page 2
<PAGE> 3
Company who by reason of the fact that he or she is a director or officer of
the Company, is involved in a legal proceeding of any nature. Such
indemnification rights include reimbursement for expenses incurred by such
director or officer in advance of the final disposition of such proceeding in
accordance with the applicable provisions of General Corporation Law of the
State of Delaware. The Company may from time to time agree to provide similar
indemnifications to certain employees and other agents.
The Company also maintains directors' and officers' liability insurance.
Item 7. Exemption from Registration Claimed. Not Applicable.
Item 8. Exhibits.
The following exhibits are filed herewith or incorporated herein by
reference, as indicated below:
4.1 The Company's Third Amended and Restated Certificate of
Incorporation was previously filed as Exhibit 3(i).1 to the
Company's Form 10-Q for the quarter ended September 30, 1996 and is
incorporated herein by this reference.
4.2 The Company's Amended and Restated By-Laws were previously
filed as Exhibit 3(ii).2 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-08899), filed on July 25, 1996, and is
incorporated herein by this reference.
4.3 The Company's specimen Certificate of Shares of Common Stock,
$0.001 par value, of the Company was previously filed as Exhibit 4.1
to the Company's Registration Statement on Form S-1 (Reg. No.
333-08899) and is incorporated herein by this reference.
4.4 The Intensiva HealthCare Corporation Stock Option Plan is filed
herewith.
5.1 Opinion of Suelthaus & Walsh, P.C. is filed herewith.
24.1 Consent of Suelthaus & Walsh, P.C. (included in Exhibit 5.1).
24.2 Consent of KPMG Peat Marwick LLP is filed herewith.
25 Power of Attorney (included on Signature Page hereto).
Item 9. Undertakings.
(a) The registrant hereby undertakes:
(1) To file, during any period in which offers and sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"SECURITIES ACT");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof), which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii) To include any material information with respect to the plan
of distribution previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Registration Statement on Form S-8 Page 3
<PAGE> 4
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 SEC such indemnification
is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
* * *
Registration Statement on Form S-8 Page 4
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Clayton, State of Missouri, on June __, 1997.
INTENSIVA HEALTHCARE CORPORATION
By /s/ David W. Cross
------------------------------
David W. Cross
President and Chief Executive
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Intensiva HealthCare
Corporation, hereby severally and individually constitute and appoint David W.
Cross and John P. Keefe, and each of them, the true and lawful attorneys and
agents of each of us to execute in the name, place and stead of each of us
(individually and in any capacity stated below) any and all amendments to this
Registration Statement on Form S-8 and all instruments necessary or advisable
in connection therewith and to file the same with the Securities and Exchange
Commission, each of said attorneys and agents to have the power to act with or
without the others and to have full power and authority to do and perform in
the name and on behalf of each of the undersigned every act whatsoever
necessary or advisable to be done in the premises as fully and to all intents
and purposes as any of the undersigned might or could do in person, and we
hereby ratify and confirm our signatures as they may be signed by our said
attorneys and agents or each of them to any and all such amendments and
instruments.
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.
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Signature Title Date
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<S> <C> <C>
/s/ David W. Cross President, Chief June 2, 1997
---------------------------
David W. Cross Executive Officer,
Principal Executive Officer and Director
/s/ John P. Keefe Chief Financial Officer June 11, 1997
---------------------------
John P. Keefe
Principal Financial and
Accounting Officer
/s/ Jeffrey J. Collinson Director June 2, 1997
---------------------------
Jeffrey J. Collinson
/s/ Wilfred E. Jaeger Director June 2, 1997
---------------------------
Wilfred E. Jaeger, M.D.
</TABLE>
Registration Statement on Form S-8 Page 5
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<TABLE>
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Signature Title Date
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<S> <C> <C>
Director June __, 1997
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James B. Tananbaum, M.D.
/s/ David L. Steffy Director June 2, 1997
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David L. Steffy
Director June __, 1997
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Philip M. Nudelman, Ph.D.
</TABLE>
Registration Statement on Form S-8 Page 6
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EXHIBIT INDEX
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Exhibit No. Page
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4.1 The Company's Third Amended and Restated Certificate of Incorporation
was previously filed as Exhibit 3(i).1 to the Company's Form 10-Q for
the quarter ended September 30, 1996 and is incorporated herein by this
reference.
4.2 The Company's Amended and Restated By-Laws were previously filed as
Exhibit 3(ii).2 to the Company's Registration Statement on Form S-1
(Reg. No. 333-08899), filed on July 25, 1996, and is incorporated
herein by this reference.
4.3 The Company's specimen Certificate of Shares of Common Stock, $0.001 par
value, of the Company was previously filed as Exhibit 4.1 to the
Company's Registration Statement on Form S-1 (Reg. No. 333-08899) and is
incorporated herein by this reference.
4.4 The Intensiva HealthCare Corporation Stock Option Plan is filed
herewith.
5.1 Opinion of Suelthaus & Walsh, P.C. is filed herewith.
24.1 Consent of Suelthaus & Walsh, P.C. (included in Exhibit 5.1).
24.2 Consent of KPMG Peat Marwick LLP is filed herewith.
25 Power of Attorney (included on Signature Page hereto).
</TABLE>
Registration Statement on Form S-8 Page 7
<PAGE> 1
EXHIBIT 4.4
INTENSIVA HEALTHCARE CORPORATION
STOCK OPTION PLAN
1.0 PURPOSE. This Stock Option Plan (the "Plan") is intended as an
incentive and to encourage stock ownership by certain key employees of
Intensiva HealthCare Corporation, formerly known as Transitional Care of
America, Inc., (the "Company"). The purposes of the Plan are to: (1) closely
associate the interests of the management and certain other key employees of
the Company with the shareholders by reinforcing the relationship between
participants' rewards and shareholder gains; (2) provide management and certain
other key employees with an equity ownership in the Company commensurate with
Company performance, as reflected in increased shareholder value; (3) maintain
competitive compensation levels; and (4) provide an incentive to management and
certain other key employees for continuous employment with the Company. It is
further intended that, except as noted below, options issued pursuant to this
Plan shall constitute incentive stock options within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (hereinafter "Incentive Stock
Options").
2.0 ADMINISTRATION. The Plan shall be administered by the Compensation
Committee, as named by the Board of Directors from time to time (hereinafter,
the "Committee"). However, the Board of Directors of the Company may, in its
sole discretion, determine that, in lieu of the Compensation Committee, the
Plan shall be administered by a separate committee of disinterested persons
appointed by the Board of Directors of the Company (the "Disinterested
Committee"), as constituted from time to time. The Disinterested Committee
shall consist of at least two (2) members of the Board of Directors. During
the period beginning one (1) year prior to commencement of service on the
Disinterested Committee, and while serving on the Disinterested Committee, no
Disinterested Committee member shall participate in, nor be eligible for
selection as a person to whom stock may be allocated or to whom stock options
or stock appreciation rights may be granted under this Plan or any other
discretionary plan of the Company under which participants are entitled to
acquire stock, stock options or stock appreciation rights of the Company. For
purposes of this Plan, the term "Committee" shall include the Disinterested
Committee, if one has been designated by the Board of Directors. The Board of
Directors may from time to time remove members from, or add members to, the
Committee. Vacancies on the Committee, howsoever caused, shall be filled by
the Board of Directors. The Committee shall select one (1) of its members as
Chairman, and shall hold meetings at such times and places as it may determine.
A majority of its members shall constitute a quorum. All determinations of
the Committee shall be made by a majority of its members. Any decision or
determination reduced to writing and signed by a majority of the members shall
be fully as effective as if it had been made by a majority vote at a meeting
duly called
Stock Option Plan Page 1
<PAGE> 2
and held. The Committee may appoint a secretary, shall keep minutes of its
meetings and shall make such rules and regulations for the conduct of its
business as it shall deem advisable.
2.1 Subject to the express provisions of the Plan, the Committee shall
have the authority, in its sole discretion and from time to time to:
(i) designate the employees or classes of employees eligible to
participate in the Plan;
(ii) grant options provided in the Plan in such form and amount as the
Committee shall determine;
(iii) impose such limitations, restrictions, and conditions upon any such
option as the Committee shall deem appropriate, provided any limitation,
restriction, or condition not expressly required by this Plan shall be approved
by the Board of Directors, as provided under Section 10; and
(iv) interpret the Plan, adopt, amend, and rescind rules and regulations
relating to the Plan, and make all other determinations and take all other
action necessary or advisable for the implementation and administration of the
Plan.
2.2 The Board of Directors of the Company shall have the authority, in its
sole discretion, to establish the exercise price of any option granted
hereunder, subject to such restrictions with respect to the exercise price as
are imposed by law.
2.3 The interpretation and construction by the Committee of any provisions
of the Plan, any prior or subsequent versions of the Plan, or of any option
granted thereunder shall be conclusive unless otherwise determined by the Board
of Directors. No member of the Board of Directors or the Committee shall be
liable for any action taken or decision made in good faith with respect to the
Plan or any option granted thereunder.
3.0 ELIGIBILITY FOR PARTICIPATION. Subject to the terms and provisions of
the Plan, participants in the Plan shall be selected by the Committee from the
executive officers (whether or not they are directors) and certain other key
employees of the Company (the "Participants"). In making this selection and in
determining the form and amount of options to be granted, the Committee shall
consider any factors deemed relevant, including the individual's functions,
responsibilities, value of services to the Company, and past and potential
contributions to the Company's profitability and sound growth. Participants
selected by the Committee shall be employees of the Company. A Participant may
hold
Stock Option Plan Page 2
<PAGE> 3
more than one option, but only on the terms and subject to the restrictions
hereafter set forth. No person shall be eligible to receive an option for a
larger number of shares than is recommended for him or her by the Committee.
4.0 SHARES SUBJECT TO THE PLAN. The shares of stock which may be subject
to options under the Plan shall be shares of the Company's common stock, either
authorized and unissued shares or shares issued and held in its treasury. The
stock subject to the options shall be one hundred seven thousand eight hundred
(107,800) shares of Common Stock $.0010 par value, hereinafter sometimes
referred to as "Common Stock".
4.1 The aggregate fair market value (determined on the date the option is
granted) of shares of Common Stock, with respect to which Incentive Stock
Options may be granted to any individual under any and all options qualified
under Section 422 of the Internal Revenue Code of 1986, as amended, which are
exercisable for the first time by a Participant during any calendar year, shall
not exceed One Hundred Thousand Dollars ($100,000.00). The date an Incentive
Stock Option is granted shall mean the date selected by the Committee as of
which the Committee allots a specific number of shares to a Participant
pursuant to the Plan.
4.2 In the event that any outstanding option under the Plan for any reason
expires or is terminated, the shares of Common Stock allocable to the
unexercised portion of such option may again be subjected to an option under
the Plan.
5.0 TERMS AND CONDITIONS OF OPTIONS. The grant of an Incentive Stock
Option pursuant to the Plan shall be authorized by the Committee and shall be
evidenced by a written Incentive Stock Option Agreement in such form as the
Committee shall from time to time recommend and the Board of Directors shall
from time to time approve. Each Incentive Stock Option Agreement evidencing a
grant hereunder shall be executed by the Company and the holder of an Incentive
Stock Option (the "Optionee") and shall comply with and be subject to the
following terms and conditions:
(A) EFFECTIVE DATE OF OPTION: Each agreement shall state the date on
which the option was granted, which date must be no later than ten (10)
years following the date of adoption of this Plan or the date on which this
Plan is approved by the shareholders, whichever is earlier.
(B) TERM AND EXERCISE OF OPTION: Each agreement shall state the length
of the time period during which the option is exercisable. Each Incentive
Stock Option shall be exercisable at the time determined by the Committee
and specified in the agreement, which time shall be no earlier than six (6)
months after the date of its grant.
Stock Option Plan Page 3
<PAGE> 4
Unless a shorter period is provided by the Committee or another Section of
this Plan, the option may be exercised at any time during the period
commencing at the time determined by the Committee and specified in the
Incentive Stock Option Agreement and ending ten (10) years from the date of
grant. No Incentive Stock Option shall be exercisable after the expiration
of ten (10) years after the date of its grant. Notwithstanding the
foregoing, the Committee may cancel an option at any time during the time
period in which it is exercisable if, in the opinion of the Committee, the
Participant has been found to engage in any activity contrary to the
interests of the Company.
(C) NUMBER AND CLASS OF SHARES: Each agreement shall state the number
and class of shares to which it pertains, which number when added to the
aggregate number of all option shares previously granted under this Plan or
outstanding on the effective date hereof shall not exceed the limits set
forth in Section 4.0 hereof.
(D) OPTION PRICE: Each agreement shall set forth the option price,
which shall not be less than one hundred percent (100%) of the fair market
value of the shares of stock subject to the option at the time such option
is granted, as such fair market value is determined by the Board of
Directors of the Company. Subject to restrictions on determining fair
market value imposed by law, the Board of Directors of the Company in fixing
the option price shall have full authority and discretion and shall be fully
protected in doing so.
(E) RESTRICTIONS ON TRANSFER OF OPTION: Each agreement shall state
that the option is not transferrable by the Optionee except by will or by
the laws of descent and distribution. Options may be exercised during the
lifetime of the Optionee only by the Optionee, and after the death of the
Optionee, only as provided in Section 7.0.
(F) RESTRICTIONS ON EXERCISE OF OPTION: Except as provided in Sections
6.0 and 7.0, each agreement shall state that in order for such option to be
valid and exercisable:
(1) The Optionee must be an employee of the Company at all times
during the period beginning on the date of the granting of such option
and ending three (3) months before the date of exercise of such
option; provided, however, that if the Optionee is employed at the
time of his or her disability (within the meaning of Section 22(e)(3)
of the Internal Revenue Code of 1986, as amended) then the
aforementioned period shall be extended to one (1) year before the
date of exercise of such option; and
Stock Option Plan Page 4
<PAGE> 5
(2) So long as the Optionee remains an employee of the Company,
such option may be exercised in whole or in part; provided that the
Optionee shall not exercise part of an option for fewer than
twenty-five (25) shares at one time unless the total number of shares
subject to the option is fewer than twenty-five (25), in which case
the Optionee shall not exercise the option for fewer than all such
shares.
(G) RESTRICTIONS ON DISPOSITION OF STOCK: In addition to any other
restrictions on the disposition of stock acquired by an option granted
hereunder, each agreement shall state that the transfer of the Common Stock
subject to the option shall have Qualified Incentive Stock Option tax
treatment under the Internal Revenue Code of 1986, as amended, only if the
Common Stock subject to such option shall be disposed of by the Optionee
after two (2) years from the date such option is granted or after one (1)
year from the date that the shares of such Common Stock were transferred to
the Optionee upon exercise, whichever is later.
The Incentive Stock Option Agreement may provide for such other terms and
conditions as the Committee and Board of Directors may determine, which need not
be the same for all options.
6.0 RETIREMENT OR DISABILITY. Notwithstanding anything contained herein
to the contrary, upon the termination of the Optionee's employment by reason of
permanent disability (as defined in Section 22(e)(3) of the Internal Revenue
Code of 1986, as amended) or retirement (as determined by the Committee), the
Optionee may, within 36 months from the date of such termination of employment,
exercise any Incentive Stock Options to the extent such Incentive Stock Options
were exercisable at the date of such termination of employment; provided that
no option may be exercised more than ten (10) years from the date of the grant
thereof. The tax treatment available pursuant to Section 422 of the Internal
Revenue Code of 1986, as amended, upon the exercise of an Incentive Stock
Option will not be available to an Optionee who exercises any Incentive Stock
Option more than (i) one (1) year after the date of termination of employment
due to permanent disability, or (ii) three (3) months after the date of
termination of employment due to retirement.
7.0 DEATH OF OPTIONEE. Notwithstanding anything contained herein to the
contrary, upon the death of the Optionee, any Incentive Stock Option
exercisable on the date of death may be exercised by the executors or
administrators of the Optionee or by any person or persons who shall have
acquired the right to exercise such Incentive Stock Option by bequest,
inheritance, or by reason of the death of the Optionee, provided that such
exercise occurs not after ten (10) years from the date of the granting thereof
or after one (1) year of the Optionee's death. The provisions of this Section
shall apply notwithstanding that
Stock Option Plan Page 5
<PAGE> 6
the Optionee's employment with the Company may have terminated prior to death,
but only to the extent of any Incentive Stock Options exercisable on the date
of death, and provided that any such termination of employment occurred not
more than three (3) months prior to death.
8.0 RESTRICTIONS ON MAJOR SHAREHOLDERS. Notwithstanding anything set
forth herein to the contrary, no individual shall be granted an option
hereunder so long as he owns stock possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company unless
at the time that the option hereunder is granted the option price is at least
one hundred ten percent (110%) of the fair market value of the Common Stock
subject to the option and such option is not exercisable after the expiration
of five (5) years from the date such option is granted. The option price and
the restricted term of the option as set forth herein shall be set forth in the
option agreement.
9.0 GENERAL RESTRICTIONS. Each Incentive Stock Option granted under the
Plan shall be subject to the requirement that, if at any time the Committee
shall determine that (i) the listing, registration or qualification of the
shares of Common Stock subject or related thereto upon any securities exchange
or under any state or Federal law, or (ii) the consent or approval of any
government regulatory body, or (iii) an agreement by the Optionee of an option
with respect to the disposition of shares of Common Stock, is necessary or
desirable as a condition of, or in connection with, the granting of such option
or the issue or purchase of shares of Common Stock thereunder, such option may
not be exercised in whole or in part unless such listing, registration,
qualification, consent, approval, or agreement shall have been effected or
obtained free of any conditions not acceptable to the Committee.
10.0 DISCRETION OF THE COMMITTEE. The Committee may, subject to approval
of the Board of Directors, make the following additional provisions with regard
to any option granted hereunder:
(A) The Optionee may pay for the Common Stock subject to such option
with previously owned shares of Common Stock of the Company, or a
combination of previously owned shares of Common Stock and United States
dollars.
(B) The option is subject to any conditions not inconsistent with the
other provisions of this Plan. Any such discretionary conditions shall be
set forth in the option agreement.
Stock Option Plan Page 6
<PAGE> 7
11.0 MANNER OF PAYMENT. Subject to the provisions of Section 10.0(A)
hereof, the option price shall be payable in United States dollars upon the
exercise of the option and may be paid in cash or by certified check.
12.0 RECAPITALIZATION. Subject to any required action by the
shareholders, the number of shares of Common Stock covered by each outstanding
option, and the price per share thereof in each such option, shall be adjusted
proportionately for any increase or decrease in the number of issued shares of
Common Stock of the Company resulting from a subdivision or consolidation of
shares or the payment of a stock dividend (but only on the Common Stock) or any
other increase or decrease in the number of such shares effected without
receipt of consideration by the Company.
12.1 Subject to any required action by the shareholders, if the Company
shall consummate any merger or consolidation, whether or not the Company shall
be the surviving corporation, each outstanding option shall pertain to and
apply to the securities to which a holder of the number of shares of Common
Stock subject to the option would have been entitled.
12.2 In the event of a change in the Common Stock of the Company as
presently constituted the shares resulting from any such change shall be deemed
to be the Common Stock within the meaning of the Plan.
12.3 To the extent that the foregoing adjustments relate to shares of
stock or securities of the Company, such adjustments shall be made by the
Committee, whose determination in that respect shall be final, subject to
review by the Board of Directors, provided that each Incentive Stock Option
granted pursuant to this Plan shall not be adjusted in a manner that causes the
option to fail to continue to qualify as an Incentive Stock Option within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
12.4 Except as hereinbefore expressly provided in this Section 12, the
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock of any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by
reason of any dissolution, liquidation, merger, or consolidation or spin-off of
assets or stock of another corporation, and any issue by the Company of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of shares of Common Stock subject to the
option.
12.5 The grant of an option pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations, or changes
Stock Option Plan Page 7
<PAGE> 8
of its capital or business structure or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or any part of its business or
assets.
13.0 RIGHTS AS A SHAREHOLDER. An Optionee or a transferee of an option
shall have no rights as a shareholder with respect to any shares covered by his
option until the date shares purchased pursuant to the exercise of an option
are transferred to him on the books of the Company. No adjustments shall be
made for dividends (ordinary or extraordinary, whether in cash, securities, or
other property) or distributions or other rights for which the record date is
prior to the date such stock certificate is issued, except as provided in
Section 12 hereof. Thereafter the Optionee's rights as a shareholder shall be
subject to the restrictions set forth in Section 5.0(G).
14.0 MODIFICATION, EXTENSION, AND RENEWAL OF OPTIONS. Subject to the
terms and conditions and within the limitations of the Plan, the Committee may
modify, extend, or renew outstanding options granted under the Plan, or accept
the surrender of outstanding options (to the extent not theretofore exercised),
and authorize the granting of new options in substitution therefor (to the
extent not theretofore exercised). The Committee shall not, however, modify
any outstanding options so as to specify a lower price or accept the surrender
of outstanding options and authorize the granting of new options and the
substitution therefor specifying a lower price. Notwithstanding the foregoing,
however, no modification of an option shall, without the consent of the
Optionee, alter or impair any rights or obligations under any option
theretofore granted under the Plan, except as otherwise expressly provided
herein.
15.0 INVESTMENT PURPOSE. Each option under the Plan shall be granted on
the condition that the purchases of shares of stock thereunder shall be for
investment purposes, and not with a view to resale or distribution except that
in the event the shares subject to such option are registered under the
Securities Act of 1933, as amended, or in the event a resale of such shares
without such registration would otherwise be permissible, such conditions shall
be inoperative if, in the opinion of counsel for the Company, such condition is
not required under the Securities Act of 1933 or any other applicable law,
regulation, or rule of any governmental agency.
16.0 RIGHT TO TERMINATE EMPLOYMENT. Nothing in the Plan or in any
agreement entered into pursuant to the Plan shall confer upon any Participant
the right to continue in the employment of the Company or affect any right
which the Company may have to terminate the employment of such Participant.
Except as provided in Sections 5.0(F)(1), 6.0, and 7.0 or except as otherwise
determined by the Committee, all Incentive Stock Options shall terminate upon
the termination of the Participant's employment.
Stock Option Plan Page 8
<PAGE> 9
17.0 LEAVES OF ABSENCE. The Committee shall be entitled to make such
rules, regulations, and determinations as it deems appropriate under the Plan
in respect of any leave of absence taken by any Participant. Without limiting
the generality of the foregoing, the Committee shall be entitled to determine
(i) whether or not such leave of absence shall constitute a termination of
employment within the meaning of the Plan and (ii) the impact, if any, of any
such leave of absence on the options under the Plan theretofore made to any
Participant who takes such leave of absence.
18.0 INDEMNIFICATION OF COMMITTEE. In addition to such other rights of
indemnification as they may have as directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against the
reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense of any action, suit, or proceeding, or
in connection with any appeal therein, to which they or any of them may be a
party by reason of any action taken or failure to act under or in connection
with the Plan or any option granted thereunder, and against all amounts paid by
them in settlement thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Committee member is liable for negligence or misconduct in the performance of
his duties; provided that within sixty (60) days after institution of any such
action, suit, or proceeding a Committee member shall in writing offer the
Company the opportunity, at its own expense, to handle and defend the same.
19.0 AMENDMENT OF THE PLAN. The Board of Directors of the Company may,
insofar as permitted by law, from time to time, with respect to any shares at
the time not subject to options, suspend or discontinue the Plan or revise or
amend it in any respect whatsoever except that, without approval of the
shareholders, no such revision or amendment shall change the number of shares
subject to the Plan, change the designation of the class of employees eligible
to receive options, decrease the price at which options may be granted, remove
the administration of the Plan from the Committee, or render any member of the
Committee eligible to receive an option under the Plan while serving thereon.
Furthermore, the Plan may not, without the approval of the shareholders, be
amended in any manner that will cause Incentive Stock Options issued under it
to fail to meet the requirements of Incentive Stock Options as defined in
Section 422 of the Internal Revenue Code of 1986, as amended.
20.0 APPLICATION OF FUNDS. The proceeds received by the Company from the
sale of shares of Common Stock pursuant to options granted under this Plan will
be used for general corporate purposes.
Stock Option Plan Page 9
<PAGE> 10
21.0 NO OBLIGATION TO EXERCISE OPTION. The granting of an option
hereunder shall impose no obligation upon the Optionee to exercise such option.
22.0 WITHHOLDING TAXES. Whenever the Company proposes or is required to
issue or transfer shares of Common Stock under the Plan, the Company shall have
the right to require the grantee to remit to the Company an amount sufficient
to satisfy any Federal, state, and/or local withholding tax requirements prior
to the delivery of any certificate or certificates for such shares.
Alternatively, the Company may issue or transfer such shares of Common Stock
net of the number of shares sufficient to satisfy any such withholding tax
requirements. For withholding tax purposes, the shares of Common Stock shall
be valued on the date the withholding obligation is incurred.
23.0 NON-UNIFORM DETERMINATIONS. The Committee's determinations under the
Plan (including without limitation determinations of the persons to receive
options, the form, amount, and timing of any option, the terms and provisions
of any option, and the agreements evidencing same) need not be uniform and may
be made by it selectively among persons who have received, or are eligible to
receive options under the Plan, whether or not such persons are similarly
situated.
24.0 APPROVAL OF SHAREHOLDERS. The Plan shall not take effect until
approved by the holders of a majority of the outstanding shares of stock of the
Company entitled by law to vote with respect to this matter, which approval
must occur within the period beginning twelve (12) months before and ending
twelve (12) months after the date the Plan is adopted by the Board of
Directors.
25.0 NONQUALIFIED STOCK OPTIONS. The Committee may, in its sole
discretion, grant options under this Plan which are not intended to be
qualified under Section 422 of the Internal Revenue Code of 1986, as amended
(hereinafter "Nonqualified Incentive Stock Options"). Any Nonqualified
Incentive Stock Options granted under the Plan shall be designated as such in
the option agreement between the Company and the Optionee. Except as otherwise
set forth below, Nonqualified Incentive Stock Options shall be subject to all
of the terms and conditions of this Plan as if such option was an Incentive
Stock Option.
25.1 The exercise price of any Nonqualified Incentive Stock Option granted
under this Plan shall be determined by the Board of Directors, in its sole
discretion, and need not be the fair market value of the shares which are the
subject of such option. The exercise price shall be specified in the option
agreement with the Optionee.
Stock Option Plan Page 10
<PAGE> 11
25.2 The provisions of Section 4.1 of this Plan shall not apply to
Nonqualified Incentive Stock Options and there shall be no restriction on the
aggregate fair market value of Nonqualified Incentive Stock Options granted to
any individual under this Plan.
25.3 The provisions of Section 5.0(G) of this Plan regarding certain
restrictions on the disposition of shares acquired pursuant to the exercise of
an option shall not apply to Nonqualified Incentive Stock Options.
25.4 The provisions of Section 8.0 shall not apply to Nonqualified
Incentive Stock Options granted under this Plan and there shall be no
restrictions on Nonqualified Incentive Stock Options granted to shareholders
owning stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company.
25.5 Notwithstanding anything contained in this Plan to the contrary, the
Committee, in its sole discretion, may grant Nonqualified Incentive Stock
Options to persons who are non-employee officers of the Company or non-employee
members of the Board of Directors of Company. Nothing contained in this
Section 25.5 shall be construed to permit the Committee to grant Qualified
Incentive Stock Options to such persons. Except as otherwise provided in
Sections 25.1 through 25.4 inclusive, all of the terms and conditions of this
Plan shall apply to Options granted pursuant to this Section 25.5. The
foregoing notwithstanding, a member of the Board of Directors to whom a
Nonqualified Incentive Stock Option is granted shall be deemed to have
"terminated employment" within the meaning of this Plan as of the later of (i)
the date such person ceases to be a member of the Board of Directors or, (ii)
if such person was an employee of the Company on the date when he or she ceases
to be a member of the Board of Directors, the date such person terminates
employment with the Company. Further, a non-employee officer to whom a
Nonqualified Incentive Stock Option is granted shall be deemed to have
"terminated employment" within the meaning of this Plan as of the later of (i)
the date such person ceases to be an officer of the Company or, (ii) if such
person was an employee of the Company on the date when he or she ceases to be
an officer of the Company, the date such person terminates employment with the
Company.
26.0 GOVERNING LAW. This Plan shall be governed by and construed in
accordance with the internal laws of the State of Missouri.
27.0 EFFECTIVE DATE. The Plan shall become effective on January 26, 1995
and all options issued pursuant to this Plan shall be issued on or before
January 26, 2005; provided, however, that the Plan and all options made under
the Plan prior to such date remain in effect until such options have been
satisfied or terminated in accordance with the Plan and the terms of such
options.
The foregoing Plan was approved and adopted by the Board of Directors of
the Company on January 26, 1995, and amended on February 21, 1997.
Stock Option Plan Page 11
<PAGE> 1
EXHIBIT 5.1
-----------
June 19, 1997
Board of Directors
Intensiva HealthCare Corporation
7733 Forsyth Boulevard
8th Floor
St. Louis, Missouri 63130
Re: INTENSIVA HEALTHCARE CORPORATION--FORM S-8
Gentlemen:
This opinion is being rendered to you pursuant to the filing of a Form
S-8 (the "FORM S-8") with the Securities and Exchange Commission (the "SEC") on
behalf of Intensiva HealthCare Corporation (the "COMPANY") registering the
issuance of shares of the Company's common stock, par value $0.001 per share
(the "COMMON STOCK"), pursuant to the Intensiva HealthCare Corporation Stock
Option Plan (the "PLAN").
In rendering the opinions expressed herein, we have examined originals
or copies certified or otherwise identified to our satisfaction of:
A. The Third Amended and Restated Certificate of Incorporation of
the Company, dated October 10, 1996 (the "CERTIFICATE OF
INCORPORATION");
B. The Amended and Restated By-laws of the Company (the
"BY-LAWS");
C. A specimen form of Common Stock Certificate; and
D. The Intensiva HealthCare Corporation Stock Option Plan.
In addition, we have examined and relied upon other documents, certificates,
corporate records, opinions, and instruments, obtained from the Company or
other sources believed by us to be reliable, as we have deemed necessary or
appropriate for the purpose of rendering
<PAGE> 2
Intensiva HealthCare Corporation
June 11, 1997
Page 2
this opinion and upon which we believe we are justified in relying. We have
also relied upon statements of fact rendered by members of Management of the
Company and the registrar and transfer agent of the Company.
Any opinion that is expressed herein "to our knowledge" or "to the best
of our knowledge" is based upon information known to attorneys of this firm who
have rendered services in connection with the Form S-8, without independent
investigation or research and represents good faith belief that the opinion
expressed is correct.
Based upon the foregoing and subject to the assumptions, limitations,
exclusions, and exceptions set forth below, we are of the opinions that
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified as a foreign corporation and in good standing
in each jurisdiction in which the character of the property owned or leased or
the nature of the business transacted by it makes qualification necessary
(except where the failure to be so qualified would not have a material adverse
effect on the business, properties, operations, financial condition, results of
operations, or prospects of the Company and its subsidiaries, taken as a
whole), and has full corporate power and authority to own or lease its
properties and to conduct its business being conducted.
(ii) The authorized capital stock of the Company consists of
30,000,000 shares of Preferred Stock, $0.001 par value, of which no shares are
outstanding, and 70,000,000 shares of Common Stock, $0.001 par value, of which
9,905,062 shares are outstanding. Proper corporate proceedings have been taken
to validly authorize capital stock. To our knowledge, all of the outstanding
shares of such capital stock are fully paid and nonassessable, and no
preemptive rights of, or rights of refusal in favor of, stockholders exist
with respect to the Company's capital stock, or the issue and sale thereof,
pursuant to the Certificate of Incorporation or By-laws of the Company.
(iii) The issuance by the Company of shares of Common Stock pursuant
to the Plan will not conflict with or result in a breach of, or a default
under, the Certificate of Incorporation or By-laws of the Company, and to our
knowledge will not conflict with or result in a breach of or a default under
any indenture, mortgage, deed of trust, agreement or
<PAGE> 3
Intensiva HealthCare Corporation
June 11, 1997
Page 3
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, or any
applicable law or regulation, or any order, writ, injunction, or decree, of any
jurisdiction, court, or governmental instrumentality.
In addition to the assumptions and the other qualifications stated
elsewhere herein, we make the following further qualifications with respect to
the opinions stated herein:
1. We have conducted no independent investigation as to the
factual matters stated herein. We have relied with respect to
those factual matters on the documents, statements, records,
certificates, and instruments submitted to and/or reviewed by
us to the effect that the facts, assumptions, and factual
statements set forth in this opinion are true, accurate, and
correct. With respect to the number of issued and outstanding
Shares of Common Stock we have relied upon statements from the
registrar and transfer agent of the Company.
2. No opinion should be considered to be given except as expressly
stated herein. Our opinions are limited to the specific issues
addressed and are limited in all respects to laws and facts
existing on the date hereof. By rendering our opinions, we do
not undertake to advise you of any changes in such laws or
facts which may occur after the date hereof. An opinion is not
an assurance or a guaranty.
This opinion is furnished by us pursuant to the requirements of Item
601 of Regulation S-K promulgated under the Securities Act of 1933, as amended
(the "ACT"), and the requirements of Form S-8 as set forth in the Act and the
rules and regulations of the SEC pursuant to the Act and is solely for your
benefit and may not be relied upon by any other person or for any other
purpose. We consent to the filing of this opinion as an exhibit to the Form
S-8.
Very truly yours,
Suelthaus & Walsh, P.C.
<PAGE> 1
Independent Auditors' Consent
The Board of Directors
Intensiva HealthCare Corporation and Subsidiaries:
We consent to incorporation by reference in the registration statement on Form
S-8 of Intensiva HealthCare Corporation of our report dated February 7, 1997,
relating to the consolidated balance sheets of Intensiva HealthCare Corporation
and subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of operations, stockholders' equity, and cash flows for the years
ended December 31, 1996 and 1995 and the period from July 18, 1994 (inception)
through December 31, 1994, which report appears in the December 31, 1996 annual
report on Form 10-K of Intensiva HealthCare Corporation.
KPMG PEAT MARWICK LLP
St. Louis, Missouri
June 18, 1997
