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As filed with the Securities and Exchange Commission on February 15, 1995.
Registration Statement No. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CHARTER MEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 58-1076937
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
3414 Peachtree Road, N.E., Suite 1400
Atlanta, Georgia 30326
(Address of principal executive offices)
(Zip Code)
CHARTER MEDICAL CORPORATION 1994 STOCK OPTION PLAN
CHARTER MEDICAL CORPORATION 1994 EMPLOYEE STOCK PURCHASE PLAN
CHARTER MEDICAL CORPORATION AMENDED DIRECTORS' STOCK OPTION PLAN
CHARTER MEDICAL CORPORATION DIRECTORS' UNIT AWARD PLAN
(Full title of the plans)
Robert W. Miller
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
(Name and address of agent for service)
(404) 572-4997
(Telephone number, including area code, of agent for service)
Copies to:
John R. Day
Vice President-Controller
Charter Medical Corporation
577 Mulberry Street
Macon, Georgia 31298
__________________________________
CALCULATION OF REGISTRATION FEE
(See next page)
__________________________________
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(Continued from previous page)
CALCULATION OF REGISTRATION FEE
===============================================================================
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price (1) fee
Common Stock, 1,965,000 $28.312 $40,854,535 $14,088
par value
$0.25 per share
===============================================================================
(1) Shares of Common Stock being registered with respect to the 1994 Stock
Option Plan consist of 988,000 shares having a weighted average exercise
price of $23.538 per share and 312,000 shares for which the offering
price is not known. Shares of Common Stock being registered with respect
to the 1994 Employee Stock Purchase Plan consist of 85,115 shares having
an exercise price of $21.144 per share and 514,885 shares for which the
offering price is not known. Shares of Common Stock being registered
with respect to the Amended Directors' Stock Option Plan consist of
25,000 shares having an exercise price of $22.875 per share and 25,000
shares for which the offering price is not known. The 15,000 shares of
Common Stock being registered with respect to the Directors' Unit Award
Plan have an offering price of $0.00 per share, as such shares are
issuable upon settlement of vested units without payment of a purchase
price per share. Pursuant to Rule 457(h)(1), the aggregate offering
price of the 851,885 shares for which the offering price is not known has
been calculated pursuant to Rule 457(c) on the basis of the average
($17.875 per share) of the high and low sales prices of the Common Stock
on the American Stock Exchange on February 13, 1995.
(2) This Registration Statement, pursuant to Rule 416(c), shall be deemed to
register an indeterminate amount of interests under the Charter Medical
Corporation 1994 Employee Stock Purchase Plan.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by Charter Medical Corporation
(the "Registrant") with the Securities and Exchange Commission are hereby
incorporated by reference into this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
September 30, 1994;
(b) All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since September 30, 1994; and
(c) The description of the Registrant's Common Stock, par value $0.25
per share, contained in the Registrant's registration statement on
Form 8-A, effective on July 21, 1992 under the Exchange Act,
including any amendment or report filed for the purpose of updating
such description.
All documents filed by the Registrant subsequent to the date of this
Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act and prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents.
Item 4. Description of Securities.
Inapplicable.
Item 5. Interests of Named Experts and Counsel.
Inapplicable.
Item 6. Indemnification of Directors and Officers.
The Registrant is a Delaware corporation. Section 145 of the Delaware
General Corporation Law (the "DGCL") provides that a Delaware corporation has
the power to indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of his service as director, officer, employee or agent of the
corporation, or his service, at the corporation's request, as a director,
officer, employee or agent of another corporation or enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
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settlement actually and reasonably incurred in connection with such action,
suit or proceeding provided that such director or officer acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, provided that such director or officer had no reasonable cause to
believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or
is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the defense or settlement
of such action or suit provided that such director or officer acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, except that no indemnification may be made
in respect of any claim, issue or matter as to which such director or officer
shall have been adjudged to be liable to the corporation unless and only to
the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such director or officer is fairly and reasonably entitled to indemnity for
such expenses which the court shall deem proper.
Section 145 further provides that, to the extent a director or officer of
a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) or (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; provided that indemnification provided for by Section
145 or granted pursuant thereto shall not be deemed exclusive of any other
rights to which the indemnified party may be entitled; and empowers the
corporation to purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Article VII of the Bylaws of the Registrant provides in substance that
the Registrant shall indemnify directors and officers against all liability
and related expenses incurred in connection with the affairs of the Registrant
if: (a), in the case of actions not by or in the right of the Registrant, the
director or officer acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Registrant, and (with
respect to a criminal proceeding) had no reasonable cause to believe his
conduct was unlawful; and (b), in the case of actions by or in the right of
the Registrant, the director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Registrant, provided that no indemnification shall be made for a claim as to
which the director or officer is adjudged liable for negligence or misconduct
unless (and only to the extent that) an appropriate court determines that, in
view of all the circumstances, such person is fairly and reasonably entitled
to indemnity.
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In addition, Section 102(b)(7) of the DGCL permits Delaware corporations
to include a provision in their certificates of incorporation eliminating or
limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided that such provisions shall not eliminate or limit the liability of a
director (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or that involve intentional misconduct or a knowing violation of law, (iii)
for unlawful payment of dividends or other unlawful distributions, or (iv) for
any transactions from which the director derived an improper personal
benefit. Article Twelfth of the Registrant's Restated Certificate of
Incorporation contains such a provision.
The Registrant maintains Directors' and Officers' liability insurance
with various insurance providers in the aggregate amount of $50,000,000.
Item 7. Exemption from Registration Claimed.
Inapplicable.
Item 8. Exhibits.
Exhibit Description
4.1 Restated Certificate of Incorporation of the Registrant
(incorporated by reference to Exhibit 3(a) to the Registrant's
Annual Report on Form 10-K for the year ended September 30,
1992).
4.2 Bylaws of the Registrant, as amended (incorporated by reference
to Exhibit 3(b) to the Registrant's Annual Report on Form 10-K
for the year ended September 30, 1994).
5 Opinion of King & Spalding regarding legality of shares being
registered.
24.1 Consent of Independent Public Accountants.
24.2 Consent of King & Spalding (contained in opinion filed as
Exhibit 5).
25 Powers of Attorney executed by certain directors or officers, or
both, of the Registrant.
99.1 1994 Stock Option Plan (incorporated by reference to Exhibit
10(e) to the Registrant's Annual Report on Form 10-K for the
year ended September 30, 1994).
99.2 1994 Employee Stock Purchase Plan.
99.3 Amended Directors' Stock Option Plan (incorporated by reference
to Exhibit 10(d) to Registrant's Annual Report on Form 10-K for
the year ended September 30, 1994).
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Exhibit Description
99.4 Directors' Unit Award Plan (incorporated by reference to Exhibit
10(i) of the Registrant's Registration Statement on Form S-4,
No. 33-53701, effective September 20, 1994).
Experts
The consolidated financial statements and schedules of Charter Medical
Corporation included in its Annual Report on Form 10-K for the year ended
September 30, 1994 and incorporated by reference in this registration
statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect thereto and are
incorporated by reference herein in reliance upon the authority of said firm
as experts in giving said reports.
Future financial statements of the Registrant and the reports thereon of
Arthur Andersen LLP also will be incorporated by reference in this
registration statement in reliance upon the authority of that firm as experts
in giving those reports to the extent said firm has audited those financial
statements and consented to the use of their reports thereon.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement
(or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
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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 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Charter
Medical Corporation 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 Atlanta, State of Georgia, on the
14th day of February, 1995.
CHARTER MEDICAL CORPORATION
By: /s/ Lawrence W. Drinkard
Lawrence W. Drinkard
Executive Vice President - Finance
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.
Signature Title Date
/s/ E. Mac Crawford * Chairman of the Board of February 14, 1995
E. Mac Crawford Directors, President,
Chief Executive Officer
(Principal Executive
Officer) and Director
/s/ Lawrence W. Drinkard Executive Vice President February 14, 1995
Lawrence W. Drinkard - Finance (Principal
Financial Officer)
and Director
/s/ John R. Day Vice President-Controller February 14, 1995
John R. Day (Principal Accounting
Officer)
/s/ Edwin M. Banks * Director February 14, 1995
Edwin M. Banks
/s/ Andre C. Dimitriadis * Director February 14, 1995
Andre C. Dimitriadis
/s/ Raymond H. Kiefer * Director February 14, 1995
Raymond H. Kiefer
/s/ Gerald L. McManis * Director February 14, 1995
Gerald L. McManis
____________________________
* By:/s/Lawrence W. Drinkard
Lawrence W. Drinkard,
Attorney-in-Fact
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EXHIBIT INDEX
Sequential
Exhibit Numbered
No. Description of Exhibit Page
4.1 Restated Certificate of Incorporation of the
Registrant (incorporated by reference).
4.2 Bylaws of the Registrant, as amended (incorporated by
reference)
5 Opinion of King & Spalding regarding legality of
shares being registered.
24.1 Consent of Independent Auditors.
24.2 Consent of King & Spalding (contained in opinion filed
as Exhibit 5).
25 Powers of Attorney executed by certain directors or
officers, or both, of the Registrant.
99.1 1994 Stock Option Plan (incorporated by reference).
99.2 1994 Employee Stock Purchase Plan.
99.3 Amended Directors' Stock Option Plan (incorporated by
reference).
99.4 Directors' Unit Award Plan (incorporated by reference)
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EXHIBIT 5
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February 14, 1995
Charter Medical Corporation
Suite 1400
3414 Peachtree Road, N.E.
Atlanta, GA 30326
Gentlemen:
We have acted as counsel to Charter Medical Corporation, a Delaware
corporation (the "Company"), in connection with the filing of a Registration
Statement on Form S-8 that will be filed by the Company on or about February
14, 1995 with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Registration Statement"), relating to shares of the
Company's Common Stock to be issued upon exercise of options granted under the
Company's 1994 Stock Option Plan, 1994 Employee Stock Purchase Plan and
amended Directors' Stock Option Plan and upon settlement of awards under the
Company's Directors' Unit Award Plan (together, the "Plans").
You have requested our opinion with respect to the legality of the
shares of Common Stock to be issued upon exercise of options and settlements
of awards granted under the Plans. We understand that our opinion will be
attached as an Exhibit to the Registration Statement and that our opinion will
be referred to in the Registration Statement. We consent to such use of our
opinion.
In rendering the opinion expressed in this letter, we have examined such
documents as we have deemed appropriate, including the Plans, the forms of
Stock Option Agreement, the Restated Certification of Incorporation of the
Company, the By-laws of the Company, actions taken by the Board of Directors
and stockholders of the Company in approving the Plans, and the Registration
Statement. In our examination of documents, we have assumed, with your
consent, that all documents submitted to us are authentic originals or, if
submitted as photocopies, that they faithfully reproduce the originals, that
all such documents have been or will be duly executed to the extent required
and that representations and statements set forth in such documents are true
and correct.
Based upon the foregoing, we are of the opinion that the Plans have been
duly adopted by all necessary corporate action on the part of the Company. We
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Charter Medical Corporation
February 14, 1995
Page 2
are also of the opinion that theshares of the Company's Common Stock to be
issued upon exercise of options and settlements of awards granted under the
Plans, when options or awards are exercised or settled in accordance with
the applicable provisions of the Plans and the related, applicable Stock
Option Agreements, will be duly and validly issued shares of Common Stock
of the Company and will be fully paid and nonassessable.
Sincerely,
KING & SPALDING
By:
Robert W. Miller
RWM/dmh
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EXHIBIT 24.1
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of our report dated December 2,
1994 included in Charter Medical Corporation's Form 10-K for the year ended
September 30, 1994 and to all references to our firm included in this
Registration Statement.
Atlanta, Georgia
February 10, 1995
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EXHIBIT 25
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POWER OF ATTORNEY
The undersigned director or officer or both of Charter Medical
Corporation (the "Company") hereby constitutes and appoints Lawrence W.
Drinkard and John R. Day his true and lawful attorneys and agents, each with
full power to act without the other and each of said attorneys having full
power of substitution and resubstitution, to do any and all acts and things
and to execute in his name, place or stead in his capacity as an officer or
director or both of the company, any and all instruments which they may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended (the "Act") and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the filing under the Act of all such registration statements, amendments,
post-effective amendments or supplements thereto, and any new or revised
prospectuses, as may be necessary or desirable in connection with the
registration of shares of the Company's Common Stock to be issued upon
exercise of options granted under the Company's 1994 Stock Option Plan, 1994
Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and
settlements of awards under the Company's Directors' Unit Award Plan,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as
an officer or director or both of the Company to all such registration
statements, amendments, post-effective amendments or supplements thereto, and
any new or revised prospectuses.
IN WITNESS WHEREOF, the undersigned director or officer or both of the
Company has executed this instrument on the 31st day of January, 1995.
/s/ E. Mac Crawford
E. Mac Crawford
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POWER OF ATTORNEY
The undersigned director or officer or both of Charter Medical
Corporation (the "Company") hereby constitutes and appoints Lawrence W.
Drinkard and John R. Day his true and lawful attorneys and agents, each with
full power to act without the other and each of said attorneys having full
power of substitution and resubstitution, to do any and all acts and things
and to execute in his name, place or stead in his capacity as an officer or
director or both of the company, any and all instruments which they may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended (the "Act") and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the filing under the Act of all such registration statements, amendments,
post-effective amendments or supplements thereto, and any new or revised
prospectuses, as may be necessary or desirable in connection with the
registration of shares of the Company's Common Stock to be issued upon
exercise of options granted under the Company's 1994 Stock Option Plan, 1994
Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and
settlements of awards under the Company's Directors' Unit Award Plan,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as
an officer or director or both of the Company to all such registration
statements, amendments, post-effective amendments or supplements thereto, and
any new or revised prospectuses.
IN WITNESS WHEREOF, the undersigned director or officer or both of the
Company has executed this instrument on the 14th day of February, 1995.
/s/ Edwin M. Banks
Edwin M. Banks
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POWER OF ATTORNEY
The undersigned director or officer or both of Charter Medical
Corporation (the "Company") hereby constitutes and appoints Lawrence W.
Drinkard and John R. Day his true and lawful attorneys and agents, each with
full power to act without the other and each of said attorneys having full
power of substitution and resubstitution, to do any and all acts and things
and to execute in his name, place or stead in his capacity as an officer or
director or both of the company, any and all instruments which they may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended (the "Act") and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the filing under the Act of all such registration statements, amendments,
post-effective amendments or supplements thereto, and any new or revised
prospectuses, as may be necessary or desirable in connection with the
registration of shares of the Company's Common Stock to be issued upon
exercise of options granted under the Company's 1994 Stock Option Plan, 1994
Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and
settlements of awards under the Company's Directors' Unit Award Plan,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as
an officer or director or both of the Company to all such registration
statements, amendments, post-effective amendments or supplements thereto, and
any new or revised prospectuses.
IN WITNESS WHEREOF, the undersigned director or officer or both of the
Company has executed this instrument on the 14th day of February, 1995.
/s/ Andre C. Dimitriadis
Andre C. Dimitriadis
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POWER OF ATTORNEY
The undersigned director or officer or both of Charter Medical
Corporation (the "Company") hereby constitutes and appoints Lawrence W.
Drinkard and John R. Day his true and lawful attorneys and agents, each with
full power to act without the other and each of said attorneys having full
power of substitution and resubstitution, to do any and all acts and things
and to execute in his name, place or stead in his capacity as an officer or
director or both of the company, any and all instruments which they may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended (the "Act") and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the filing under the Act of all such registration statements, amendments,
post-effective amendments or supplements thereto, and any new or revised
prospectuses, as may be necessary or desirable in connection with the
registration of shares of the Company's Common Stock to be issued upon
exercise of options granted under the Company's 1994 Stock Option Plan, 1994
Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and
settlements of awards under the Company's Directors' Unit Award Plan,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as
an officer or director or both of the Company to all such registration
statements, amendments, post-effective amendments or supplements thereto, and
any new or revised prospectuses.
IN WITNESS WHEREOF, the undersigned director or officer or both of the
Company has executed this instrument on the 31st day of January, 1995.
/s/ Raymond H. Kiefer
Raymond H. Kiefer
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POWER OF ATTORNEY
The undersigned director or officer or both of Charter Medical
Corporation (the "Company") hereby constitutes and appoints Lawrence W.
Drinkard and John R. Day his true and lawful attorneys and agents, each with
full power to act without the other and each of said attorneys having full
power of substitution and resubstitution, to do any and all acts and things
and to execute in his name, place or stead in his capacity as an officer or
director or both of the company, any and all instruments which they may deem
necessary or advisable to enable the Company to comply with the Securities Act
of 1933, as amended (the "Act") and any rules, regulations and requirements of
the Securities and Exchange Commission in respect thereof, in connection with
the filing under the Act of all such registration statements, amendments,
post-effective amendments or supplements thereto, and any new or revised
prospectuses, as may be necessary or desirable in connection with the
registration of shares of the Company's Common Stock to be issued upon
exercise of options granted under the Company's 1994 Stock Option Plan, 1994
Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and
settlements of awards under the Company's Directors' Unit Award Plan,
including specifically, but without limiting the generality of the foregoing,
the power and authority to sign the name of the undersigned in his capacity as
an officer or director or both of the Company to all such registration
statements, amendments, post-effective amendments or supplements thereto, and
any new or revised prospectuses.
IN WITNESS WHEREOF, the undersigned director or officer or both of the
Company has executed this instrument on the 29th day of January, 1995.
/s/ Gerald L. McManis
Gerald L. McManis
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EXHIBIT 99.2
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CHARTER MEDICAL CORPORATION
1994 EMPLOYEE STOCK PURCHASE PLAN
1. Purpose. The purpose of the Charter Medical Corporation 1994
Employee Stock Purchase Plan, (the "Plan"), is to provide employees of Charter
Medical Corporation (the "Company") and its subsidiary companies with an
opportunity to be compensated through the benefits of stock ownership and to
acquire an interest in the Company through the purchase of Common Stock of the
Company. It is the intention of the Company to have the Plan qualify as an
"employee stock purchase plan" under Section 423 of the Internal Revenue Code
of 1986 (the "Code"). The provisions of the Plan shall, accordingly, be
construed so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
2. Definitions.
(a) "Base Pay" means the compensation payable to an employee by the
Company or a designated subsidiary (as defined in Code Section 424(f)) (a
"subsidiary") calculated at that employee's base salary or standard
hourly rate of compensation, plus overtime, commissions, and shift
differential, but excluding incentive bonus compensation and compensation
payable under any deferred compensation or other fringe benefit plan.
(b) "Employee" means any person who is customarily employed for
more than 20 hours per week, by the Company or by any subsidiary of the
Company designated from time to time by the Committee (as defined in
Section 13).
3. Eligibility.
(a) Any Employee who shall be employed on or before 90 days
preceding the Offering Date of an Offering Period shall be eligible to
participate in the Plan for such Offering Period except that no Officer
of the Company can participate in the Plan other than for participation
in an Offering Period that begins prior to such person's election as an
Officer. The term "Officer" shall mean the position of Assistant Vice
President and officer positions that are senior to the position of
Assistant Vice President.
(b) Any provision of the Plan to the contrary notwithstanding, no
Employee shall be granted an option:
(i) If, immediately after the grant such Employee would own
shares, and/or hold outstanding options to purchase stock,
possessing 5% or more of the total combined voting power or value of
all classes of shares of the Company or of any subsidiary of the
Company; or
(ii) Which permits his rights to purchase shares under all
employee stock purchase plans of the Company and its subsidiaries
to accrue at a rate which exceeds $25,000 of the fair market value
of the shares (determined at the time such option is granted) for
each calendar year in which such stock option is outstanding at any
time.
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4. Offering Periods. The Plan will have three Offering Periods of not
less than six months nor more than twelve months duration each, the first of
which shall not begin before April 1, 1994, and the last of which shall end
not later than March 31, 1997. The beginning date (the "Offering Date") and
the ending date (the "Termination Date") of each Offering Period shall be set
in advance of each Offering Period by the Committee (as defined in Section 13).
5. Participation. An eligible Employee may become a participant for an
Offering Period only by completing an election notice provided by the Company
and filing it with the designated representative of the Company no later than
the date specified by the Company in the election notice form.
Payroll deductions for a participant with respect to an Offering Period
shall commence with the first payroll period beginning on or after the
Offering Date, and shall end with the last payroll period ending on or before
the Termination Date, unless sooner terminated by the participant as provided
in Section 10. All Employees granted options under the Plan shall have the
same rights and privileges, except that the amount of stock which may be
purchased under such option may vary in a uniform manner as described in
Section 7.
6. Method of Payment. Payments for shares under the Plan may be made
only by payroll deductions, as follows:
(a) If a participant wishes to participate in the Plan, then at the
time he files his election notice he shall elect to have deductions made
from his Base Pay on each payday during the time he is a participant at a
rate, whether expressed in dollars or as a percentage, not to exceed 10%
of his annualized Base Pay as of the Offering Date.
(b) All payroll deductions made for a participant shall be credited
to his account under the Plan. A participant may not make any separate
cash payment into such account. A participant's account shall be no more
than a bookkeeping account maintained by the Company, and neither the
Company nor any subsidiary shall be obligated to segregate or hold in
trust or escrow any funds in a participant's account.
(c) A participant may discontinue his participation in the Plan as
provided in Section 10, but no other change can be made and,
specifically, a participant may not alter the rate of his payroll
deductions.
7. Granting of Option.
(a) On the Offering Date for each Offering Period, a participant
shall be granted an option for a fixed and determinable maximum number of
shares according to the following procedure:
Step 1--Calculate the amount elected by the participant to be
withheld or paid for participation in the Plan on the Offering Date
based on his annualized Base Pay on the Offering Date and the number
of pay periods in the Offering Period;
Step 2--Determine the figure which represents 85% of the fair market
value of a share on the Offering Date, as provided in Section 7(b);
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Step 3--Divide the amount determined in Step 1 by the figure
determined in Step 2 and round down the quotient to the nearest
whole number. This final figure is the fixed maximum number of
shares for which the participant shall be granted, on the Offering
Date, an option to purchase, subject to the adjustments provided for
in Sections 12 and 17.
(b) The option price per share of shares purchased with payroll
deductions for a participant will be 85% of the mean between the high and
low sales prices of the Common Stock on the American Stock Exchange on
the Offering Date or, if no shares are traded on such exchange on that
date, such price on the next preceding trading day on which the Common
Stock was traded.
8. Exercise of Option. Unless a participant gives written notice of
withdrawal pursuant to Section 10(a) before the last business day in an
Offering Period or a participant's employment terminates on or prior to the
Termination Date of an Offering Period, his option for the purchase of shares
during an Offering Period with payroll deductions made during the Offering
Period will be exercised automatically for him on the Termination Date of that
Offering Period. The automatic exercise shall, subject to Sections 12 and 17,
be for the purchase of the maximum number of full shares subject to his option
which the sum of payroll deductions credited to the participant's account on
the Termination Date can purchase at the option price.
9. Delivery. As promptly as practicable after the end of an Offering
Period, the Company will deliver to each participant the shares purchased upon
the exercise of the option together with a cash payment equal to the balance
without interest of any payroll deductions credited to his account which was
not used for the purchase of shares.
10. Withdrawal.
(a) A participant may withdraw payroll deductions credited to his
account under the Plan at any time by giving written notice to the
representative of the Company designated on the election notice form.
All of the participant's payroll deductions credited to his account will
be paid to him promptly after receipt of his notice of withdrawal, and no
further deductions will be made from his pay during that Offering Period.
(b) A participant's withdrawal will not have any effect upon his
eligibility to participate in any similar plan which may hereafter be
adopted by the Company or in any subsequent Offering Period.
(c) Upon termination of the participant's employment during an
Offering Period during an Offering Period for any reason, including death
or retirement, the payroll deductions credited to his account for such
period will be returned to him or, in the case of his death, to the
person or persons entitled thereto under Section 14.
11. No Interest. No interest shall be accrued or payable with respect
to amounts in a participant's account.
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12. Stock.
(a) The shares of Common Stock to be sold to participants under the
Plan may, at the election of the Company, be either treasury shares or
shares originally issued for such purpose. The maximum number of shares
which shall be made available for sale under the Plan shall be 600,000
shares and the maximum number of shares available for sale in each
Offering Period shall be 300,000, except that the maximum number of
shares offered in the third Offering Period shall not exceed the then
remaining number of shares available under the Plan and subject in each
case to adjustment upon changes in capitalization of the Company as
provided in Section 17. If the total number of shares for which options
are to be exercised for an Offering Period in accordance with Section 8
exceeds the number of shares then available under the Plan for such
Offering Period, the Company shall make a prorata allocation of the
shares available based on a fraction, the numerator of which shall be the
number of shares with respect to which a participant has an option to
purchase for an Offering Period and the denominator of which shall be the
number of shares available for purchase, with rounding down for each
participant to the nearest whole number.
(b) A participant will have no interest in shares covered by an
option until such option has been exercised.
(c) Subject to the provisions of Section 14, shares to be delivered
to a participant under the Plan will be registered only in the name of
the participant.
13. Administration. The Plan shall be administered by a Committee (the
"Committee") consisting of not less than three members who shall be appointed
by the Chief Executive Officer of the Company. Each member of the Committee
shall be either a director, an officer, or an employee of the Company. The
Committee shall be vested with full authority to make, administer, and
interpret such rules and regulations as it deems necessary to administer the
Plan, and any determination, decision, or action of the Committee in
connection with the construction, interpretation, administration, or
application of the Plan shall be final, conclusive, and binding upon all
participants and all persons claiming under or through any participant.
14. Designation of Beneficiary. A participant may file a written
designation of a beneficiary who is to receive any shares or cash to the
participant's credit under the Plan in the event of such participant's death
before, on, or after the Termination Date but prior to the delivery to the
participant of shares and, if applicable, cash. Such designation of
beneficiary may be changed by the participant at any time by written notice.
Upon the death of a participant and upon receipt by the Company of proof of
the identity and existence at the participant's death of a beneficiary validly
designated by him under the Plan, the Company shall deliver such shares or
cash to such beneficiary. In the event of the death of a participant and in
the absence of a beneficiary validly designated under the Plan who is living
at the time of such participant's death, the Company shall deliver such shares
or cash to the executor or administrator of the estate of the participant, or
if no such executor or administrator has been appointed (to the knowledge of
the Company) the Company, in its discretion, may deliver such shares or cash
to the spouse or to any one or more dependents or relatives of the
participant; or, if no spouse, dependent, or relative is known to the Company,
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then to such other person as the Company may designate. No designated
beneficiary shall, prior to the death of the participant by whom he has been
designated, acquire any interest in the shares or cash credited to the
participant under the Plan.
15. Transferability. Neither payroll deductions credited to a
participant's account nor any rights with regard to the exercise of an option
or to receive shares under the Plan may be assigned, transferred, pledged, or
otherwise disposed of in any way by the participant. Any such attempted
assignment, transfer, pledge, or other disposition shall be without effect,
except that the Company may treat such act as an election to withdraw funds in
accordance with Section 10.
16. Use of Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose.
17. Adjustments Upon Changes in Capitalization. In the event that the
outstanding shares of Common Stock of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of
shares or other securities of the Company by reason of a recapitalization,
reclassification, stock split, combination of shares, or dividend payable in
shares of Common Stock, an appropriate adjustment shall be made by the
Committee to the number and kind of shares as to which outstanding options
shall be exercisable and to the option price. No fractional shares shall be
issued or optioned in making the foregoing adjustments. All adjustments made
by the Committee under this paragraph shall be conclusive and binding on all
participants and all persons claiming under or through any participant.
Subject to any required action by the stockholders, if the Company shall
be a party to any reorganization involving merger, consolidation, acquisition
of the stock or acquisition of the assets of the Company, the Committee in its
discretion may declare (a) that all options granted hereunder are to be
terminated after giving at least ten days' notice to holders of outstanding
options, or (b) that any option granted hereunder shall pertain to and apply
with appropriate adjustment as determined by the Committee to the securities
of the resulting corporation to which a holder of the number of shares of
Common Stock subject to the option would have been entitled. The adoption of
a plan of dissolution or liquidation by the Board of Directors and
stockholders of the Company shall cause every option outstanding hereunder to
terminate on the fifteenth day thereafter, except that, in the event of the
adoption of a plan of dissolution or liquidation in connection with a
reorganization as provided in the preceding sentence, options outstanding
hereunder shall be governed by and shall be subject to the provisions of the
preceding sentence.
Any issue by the Company 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 any option, except as specifically provided otherwise
in this Section 17. 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 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.
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18. Amendment or Termination. The Board of Directors of the Company may
at any time terminate or amend the Plan. No such termination can affect
options previously granted and no amendment can make any change in any option
theretofore granted which would adversely affect the rights of any
participant. No amendment can be made without prior approval of the
stockholders of the Company if such amendment would:
(a) Require the sale of more shares than are authorized under
Section 12; or
(b) Permit payroll deductions or cash payments at a rate in excess
of 10% of a participant's Base Pay.
19. Notices. All notices or other communications by a participant to
the Company under or in connection with the Plan shall not be deemed to have
been duly given until actually received by the representative of the Company
designated on the election notice form provided by Section 5.
