UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
CareMatrix Corporation
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(Name of Issuer)
Common Stock, par value $.05 per share
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(Title of Class of Securities)
141706 10 1
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(CUSIP Number)
Michael J. Bohnen, Esq.,
Nutter, McClennen & Fish, LLP
One International Place
Boston, MA 02110-2699
(617) 439-2000
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
October 4, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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SCHEDULE 13D
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CUSIP No. 141706 10 1 Page 2 of 6
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Abraham D. Gosman
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
Other (OO)
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF 7 SOLE VOTING POWER
SHARES 4,566,910
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY EACH 0
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REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 7,620,154
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,620,154
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11)
EXCLUDES CERTAIN SHARES* [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
44.9%
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14 TYPE OF REPORTING PERSON*
Individual (IN)
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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Item 1. Security and Issuer.
Issuer: CareMatrix Corporation, 197 First Avenue,
Needham, Massachusetts, 02194 (the "Company")
Security: Common Stock, par value $.05 per share ("Common Stock")
Item 2. Identity and Background.
(a) Name:
Abraham D. Gosman
(b) Business Address:
777 South Flagler Drive
West Palm Beach, FL 33401
(c) Present Principal Employment and Employer:
Chairman, President and Chief Executive Officer of
PhyMatrix Corp.
777 South Flagler Drive
West Palm Beach, FL 33401
Chairman and Chief Executive Officer of Meditrust
197 First Avenue
Needham, MA 02194
Chairman of CareMatrix Corporation
197 First Avenue
Needham, MA 02194
(d) Criminal Proceedings in Last Five Years:
None
(e) Civil Securities Proceedings in Last Five Years:
None
(f) Citizenship:
The reporting person is a citizen of the United States of
America.
Page 3 of 6
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Item 3. Source and Amount of Funds or Other Consideration.
On October 4, 1996, twelve wholly owned subsidiaries of The Standish
Care Company were merged (the "Merger") into twelve corporations controlled by
Abraham D. Gosman, members of his family and certain members of senior
management (collectively, "Pre-Merger CareMatrix"), with the stockholders of
Pre-Merger CareMatrix receiving approximately 92% of the then outstanding shares
of Common Stock of The Standish Care Company. Upon consummation of the Merger,
Mr. Gosman was deemed to be the beneficial owner of 79.2% of the outstanding
shares of common stock of The Standish Care Company. See the Company's
Registration Statement on Form S-4 (Reg. No. 333-5364) and amendments thereto
for further description of the Merger. Following the Merger, effective October
14, 1996, The Standish Care Company changed its name to CareMatrix Corporation.
On October 24, 1996, the Company completed an offering of 6,250,000
shares of its Common Stock to the public (the "Public Offering") pursuant to a
Registration Statement on Form S-1 (Reg. No. 333-11455) filed with the
Securities and Exchange Commission. In connection with the Public Offering,
certain selling stockholders granted to the underwriters an option to purchase
937,500 shares of Common Stock to cover over-allotments. The underwriters
exercised their over-allotment option in full, and Mr. Gosman sold 703,432
shares of Common Stock which he owned directly and 125,596 shares of Common
Stock of which he was deemed the beneficial owner, as Trustee of The Gosman
CareMatrix Trust dated July 3, 1996 (the "Trust"), pursuant to such option. In
addition, $1,400,000 of the proceeds of the Public Offering were used to redeem
100 shares of the Company's Series B Preferred Stock held by Mr. Gosman, which
were convertible into 67,307 shares of Common Stock at an initial conversion
price of $20.80 per share. On November 29, 1996, Mr. Gosman purchased 8,000
shares of Common Stock. As a result of these transactions, Mr. Gosman is deemed
to own beneficially 44.9% of the Common Stock of the Company.
Item 4. Purpose of Transaction.
As a result of the Merger, Mr. Gosman became the principal stockholder
and Chairman of the Company. In addition, in connection with the Merger, Mr.
Gosman and Mr. Gosman's sons, Andrew D. Gosman and Michael M. Gosman, were
appointed to the Board of Directors of the Company. After the Public Offering,
Mr. Gosman continues as the principal stockholder and Chairman of the Company.
As such, Mr. Gosman may be deemed to control the Company, subject to the control
of other persons including the other executive officers and members of the Board
of Directors of the Company. In connection with his day-to-day management of the
Company, Mr. Gosman may from time-to-time consider proposals relating to: (i)
the issuance by the Company of shares of the Company, whether in connection with
financings or acquisitions by the Company or for compensation purposes; (ii) the
merger, reorganization or other transaction involving the Company or any of its
subsidiaries; (iii) the sale or transfer of assets of the Company or any of its
subsidiaries; (iv) changes in the Company's Board of Directors; (v) changes in
the capitalization of the Company; (vi) changes in the Company's
Page 4 of 6
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Restated Certificate of Incorporation or By-Laws, certain of which might have
the effect of impeding a change in control of the Company; or (vii) other
changes in the Company's business.
Item 5. Interest in Securities of the Issuer.
(a) Mr. Gosman is deemed to have beneficial ownership of 7,620,154
shares of Common Stock (44.9% of all currently outstanding
shares of Common Stock), 7,612,154 of which shares of Common
Stock are held by Mr. Gosman as Trustee (see below).
(b) Mr. Gosman is deemed to be the beneficial owner of 7,612,154
shares of Common Stock which he holds as Trustee of The Gosman
CareMatrix Trust dated July 3, 1996, for the benefit of his
adult sons, Andrew D. Gosman and Michael M. Gosman. Pursuant
to the terms of the Trust, the Trustee has the sole power to
dispose or to direct the disposition of all such shares, and
voting power with respect to 4,558,910 of such shares, until
the termination of the Trust.
(c) See Item 3 above.
(d) Andrew D. Gosman and Michael M. Gosman, the beneficiaries of
the Trust, are the only persons who have the right to receive
dividends on, and the proceeds from the sale of, the shares
held under the Trust.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
See Item 5(b) and (d) for description of the Trust, which is included
as an Exhibit hereto.
Item 7. Material to be Filed as Exhibits.
1. Agreement and Plan of Merger (Filed as an Exhibit to the
Company's Report on Form 8-K dated July 12, 1996)
2. The Gosman CareMatrix Trust dated July 3, 1996
* * *
Page 5 of 6
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Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
/s/ Abraham D. Gosman
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Abraham D. Gosman
Date: November 29, 1996
Page 6 of 6
EXHIBIT 2
This Declaration of Trust is made this third day of July, 1996, by
Abraham D. Gosman, of Palm Beach, Florida, hereinafter called the trustee, which
term, and any pronoun referring thereto, shall be deemed to mean the trustee or
trustees for the time being hereunder,
WITNESSETH THAT:
WHEREAS Michael M. Gosman, of Weston, Massachusetts, Andrew D. Gosman,
of Newton, Massachusetts, and/or any other person or persons may hereafter from
time to time convey, assign, transfer, give, devise, bequeath and/or appoint
property, real or personal, to said Abraham D. Gosman, as trustee as aforesaid,
under the designation "Trustee under Gosman Family CareMatrix Trust";
NOW, THEREFORE, said Abraham D. Gosman, the trustee hereunder, hereby
declares to and covenants with the beneficiaries hereunder that he and his
successors in trust shall hold all such property received or in any way acquired
by them as such trustees (all hereinafter called the trust property) upon the
trusts hereinafter set forth.
ARTICLE FIRST: This instrument shall be known as "Gosman CareMatrix
Trust".
ARTICLE SECOND: With respect to any property that may be transferred to
the trustees as aforesaid, the trustees shall deal with the same as follows:
1. The trustees shall designate any property they shall receive from
said Michael M. Gosman as a separate trust estate for his benefit and shall deal
with such separate trust estate upon the trusts hereinafter in the following
Article Third set forth.
2. The trustees shall designate any property they shall receive from
said Andrew D. Gosman as a separate trust estate for his benefit and shall deal
with said separate trust estate upon the trusts hereinafter in said Article
Third set forth.
3. With respect to any trust property the trustees shall receive from a
person or persons other than said Michael M. Gosman or said Andrew D. Gosman,
the trustees shall designate the same as a separate trust estate for the benefit
of such of said Michael or said Andrew as such person or persons shall, by
instrument in writing delivered to the trustees hereunder at the time of such
transfer, direct. In default of such direction, the trustees shall divide any
and all property transferred to the trustees as aforesaid into such number of
shares, one or two, as shall be required, and shall designate one of said shares
as a separate trust estate for the benefit of such of said Andrew D. Gosman and
said Michael M. Gosman as are or is then living.
Notwithstanding anything hereinbefore in this Article provided, with
respect to any property directed by the foregoing provisions of this Article to
be designated as a separate trust estate for the benefit of either said Andrew
or said Michael, if the trustees are then holding
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another separate trust estate hereunder for the benefit of said Andrew or said
Michael, as the case may be, the trustees shall add the share so designated for
his benefit to, and thereafter deal with the same as a part of, such other
separate trust estate.
ARTICLE THIRD: With respect to the separate trust estates designated in
accordance with the provisions of the foregoing Article Second for the benefit
of said Andrew D. Gosman and said Michael M. Gosman and directed by said
provisions to be dealt with upon the trusts in this Article Third set forth
(each of said Andrew and said Michael with respect to the separate trust estate
so designated for his benefit being hereinafter referred to as the
"beneficiary") the trustees shall hold and manage the trust property, or as much
thereof as from time to time remains in their hands or possession, shall collect
the income and proceeds thereof and, after paying all proper expenses of
administering the trust with respect thereto, including reasonable compensation
for their services, shall deal with and dispose of the remaining income and
principal thereof as follows:
1. For and during the life of the beneficiary, the trustees shall pay
over or transfer to, and/or apply for the benefit of, the beneficiary such (if
any) sum or sums and/or other property from said income and/or principal, at
such time or times and in such manner or manners, as in the absolute and
uncontrolled discretion of the disinterested trustee or trustees shall for any
reason or purpose whatsoever, - including the termination of the trust
hereunder, - be deemed desirable, and the trustees shall accumulate and add to
the principal of the trust property any income not paid over, transferred or
applied in accordance with the foregoing provisions of this Section.
2. Unless sooner terminated by payment, transfer and/or application of
the entire principal of the trust property in accordance with and as authorized
or directed by the foregoing provisions hereof, the trust hereunder shall
terminate upon the death of the beneficiary and the trustees shall thereupon pay
over or transfer the entire then remaining principal of the trust property as
follows:
A. As the beneficiary shall by his last will and testament
direct and appoint, making specific reference to the provisions of this
Declaration of Trust conferring such power of appointment, to or among,
or in favor or for the benefit of, any person or persons whomsoever,
natural or corporate, whether then or thereafter from time to time
living or in existence, including, without hereby limiting the
generality of the foregoing language, the beneficiary's estate, his
creditors and the creditors of his estate, and in such proportion or
proportions, if more than one, as the beneficiary shall so appoint.
B. In default of such appointment (or to the extent, if any,
to which such appointment shall not be fully effective), the trustees
shall pay over or transfer said principal to the executors of the
beneficiary's will, in their representative capacity as such, to be
dealt with as general assets of the beneficiary's estate.
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ARTICLE FOURTH: Notwithstanding anything to the contrary elsewhere in
this Declaration of Trust provided, with respect to the right and power to vote,
and to execute waivers and consents in respect to any shares of stock or other
securities that may, from time to time be comprised in the trust property
(hereinafter referred to as "voting rights") and also with respect to
determinations relative to the investment, reinvestment or retention of the
trust property, it is provided as follows:
1. With respect to each separate trust estate held under the provisions
of the foregoing Article Third hereof, the beneficiary thereof shall (subject to
the following provisions of this Section) have full and unqualified voting
rights in respect to any shares of stock that shall be comprised in the trust
property and the trustee or trustees shall, on request in writing from the
beneficiary, execute and deliver any and all instruments that may be necessary
to enable the beneficiary to exercise such voting rights; PROVIDED, HOWEVER,
that, in the event that any person or persons transferring to a separate trust
estate hereunder any shares of stock or other securities with respect to which
any voting right may be exercisable shall, at the time of such transfer, deliver
(or mail by registered or certified mail, postage prepaid) to the trustees
hereunder an instrument in writing signed by such person or persons notifying
the trustees that said voting rights shall be exercisable by a person or persons
other than the beneficiary of said separate trust estate, then said voting
rights shall be exercisable only by the person or persons specified in said
direction and in accordance with any limitations or other restrictions therein
set forth.
The trustee or trustees hereunder, based upon such evidence as said
trustee or trustees shall, in their absolute and uncontrolled discretion, deem
available and sufficient, are authorized to make all determinations necessary or
desirable in order to give effect to the provisions of this Section, including
but not limited to, determinations relative to the construction of any written
instrument containing a direction as to the manner in which voting rights with
respect to any shares of stock contributed to any separate trust estate
hereunder are to be exercisable, and all determinations so made shall be final
and binding.
2. Subject to the provisions of the foregoing Section 1, if and while
said Abraham D. Gosman is acting as a trustee hereunder, said Abraham D. Gosman
shall have the sole responsibility to make all determinations relative to the
investment, reinvestment, retention and disposition of the trust property or any
portion or portions thereof and any other trustee or trustees shall, on request
in writing from said Abraham D. Gosman, abide by such determinations and execute
and deliver any and all such instruments in writing, including, but not limited
to subscriptions and documents of sale, acquisition or exchange, as shall or may
be reasonably necessary or proper to enable said Abraham D. Gosman to exercise
such responsibility, and said other trustee or trustees shall have no duty to
make recommendations or otherwise initiate action with respect to any matter as
to which sole responsibility is held by said Abraham D. Gosman as hereinbefore
provided. Notwithstanding as aforesaid, upon the first to occur of (a) receipt
by said other trustee or trustees of an instrument in writing signed by a
physician authorized to practice medicine in either the Commonwealth of
Massachusetts or the State of Florida wherein said physician shall certify that
said Abraham D. Gosman is incapable,
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by reason of advanced age, mental weakness, mental illness or physical
incapacity, of making determinations relative to the investment of property and
(b) an adjudication by a court of competent jurisdiction that said Abraham D.
Gosman is incapable of caring for his property, said Abraham D. Gosman shall, if
he is then acting as trustee hereunder, cease to be a trustee hereunder without
the necessity of any act of resignation.
ARTICLE FIFTH: No principal or income payable or transferable or to
become payable or transferable under this Declaration of Trust shall be subject
to anticipation or assignment by any beneficiary hereof or to the interference
or control of any creditor of any such beneficiary, or to be taken or reached by
any legal or equitable process in satisfaction of any debt or other liability of
any such beneficiary, prior to its receipt by the beneficiary, and any money or
other property payable or transferable to a married person shall be to such
person's separate use, free from the interference or control of any spouse of
such person.
ARTICLE SIXTH: In addition to, and not in limitation of, their common
law and statutory powers, but subject to the provisions of the foregoing Article
Fourth hereof, the trustees hereunder are expressly authorized to exercise with
respect to the trust property, of whatever from time to time consisting, the
powers following, to wit:
1. To receive and collect all sums due or payable to them as such
trustees and to take all steps which they shall think proper to enforce the
payment thereof.
2. To retain any property, real or personal, including cash, which they
may receive or acquire as trustees, in the same state of investment in which
received or acquired by them as far and as long as they shall think proper, even
though such property shall be of a character or in an amount not customarily
considered proper for the investment of trust funds; and to receive or acquire
at any time or from time to time and to retain property returning no income as
long and as far as the trustees shall think proper, without the same being in
any way chargeable with income and without the proceeds thereof, in case of
sale, being in any part deemed income.
3. From time to time and as often as they shall think proper to sell or
to exchange, at public or private sale or transaction, for cash or on credit,
and for such considerations and on such terms as they think proper, any real or
personal property held by them as trustees hereunder, and, with respect to any
property so sold or exchanged, to transfer or convey the same by good and
sufficient deed or deeds or other instrument or instruments of transfer to, or
as directed by, the purchaser or purchasers thereof, free from all trusts, and
the trustees shall have power in case of any sale or exchange or offer to sell
or exchange to buy in the property, or to buy in, rescind or vary any contract
and to resell or re-exchange any such property.
4. To invest and reinvest the whole or any part or parts of the trust
property and from time to time and as often as they shall see fit to change
investments, including power to invest in all types of securities (including,
among others, bonds, preferred stocks, common stocks and beneficial interests of
or in corporations, domestic or foreign, and so-called investment trusts and
investment companies) and other property, real or personal, of whatsoever nature
and
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however denominated, all to such extent as shall seem to the trustees proper,
and without liability for loss, even though such property shall be of a
character or in an amount not customarily considered proper for the investment
of trust funds.
5. To participate in such manner and upon such terms as they shall
think proper in any reorganization, merger, consolidation, sale of assets or
recapitalization affecting any of the trust property, to settle, adjust,
compromise, compound or subordinate any debts owing to or by them as such
trustees or any other claims or demands either in favor of or against the trust
assets or themselves as such trustees, and to adjust any disputes in relation to
debts or claims by arbitration or otherwise, and to pay any debts or claims
against them as such trustees upon any evidence that to them shall seem
sufficient.
6. To waive notice of and to vote at all meetings of any corporation or
other enterprise or organization any of the shares or other securities having
voting power of which are included in the trust assets, and in connection with
any such voting to give such proxies and to such persons as the trustees shall
think proper, and to consent to or approve action taken at any such meeting; and
to enter into one or more voting trust agreements with respect to any of such
shares or other securities in such form or forms as the trustees shall think
proper, and to transfer any such shares or other securities of record for voting
purposes to the trustee or trustees under any such voting trust agreement.
7. To determine, in accordance with recognized rules of accounting, all
questions that may arise in the administration of the trust as to whether and to
what extent any money or other thing of value received by the trustees shall be
deemed to be principal or to be income, and as to whether and to what extent any
charge or expense paid by them shall be charged against principal or against
income, including power, in accordance with such rules, to apportion any receipt
or expense between principal and income and to determine what portion, if any,
of the actual income received upon any wasting investment, or upon any
investment purchased or acquired at a premium, shall be retained and added to
principal to prevent a diminution thereof upon maturity or exhaustion of such
investment.
8. To employ (and pay compensation to) such attorneys, brokers, banks,
custodians, investment counsel and other servants and agents (who as to each
said category may be natural or corporate persons, or firms of which any trustee
is a member or associate) as the trustees shall think proper, and any trustee
hereunder may by instrument in writing delegate to any such servant or agent or
to any co-trustee or co-trustees hereunder or any other person or persons any or
all of the powers in this instrument given for such periods of time as such
trustee shall think proper and as shall be specified in such writing, PROVIDED
ALWAYS, HOWEVER, that no disinterested trustee shall delegate to any co-trustee,
or to any other person whomsoever, the exercise of any power or discretion which
is expressly conferred upon or stated to be exercisable by the disinterested
trustee or trustees, and no purported delegation of the exercise of any such
power or discretion shall be valid or of any force or effect whatsoever.
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9. To incur all such liabilities and expenses, and to pay from the
trust assets in their hands all such sums, as the trustees shall think proper
for the management and care of the trust property or for carrying out any of the
powers in this instrument given, including, without limiting the foregoing
generality, repairs, improvements, taxes, assessments, insurance, counsel fees,
wages, commissions of brokers on the sale, leasing, letting or encumbering of
any property, their own compensation and all other charges.
10. To give partial releases of, and to extend or subordinate, any
mortgages or pledges held by them, upon such terms as the trustees shall think
proper, to assign or discharge any such mortgage or pledge, to take possession
of any property mortgaged to the trustees, to exercise any power of sale
contained in any such mortgage or pledge, and to do any act which they shall
think proper to foreclose the same by entry or otherwise.
11. To borrow money from any person or persons whomsoever, in each case
with or without giving security or personal liability for the repayment thereof,
and in all respects upon such terms and conditions as the trustees shall think
proper.
12. To lease, mortgage or otherwise encumber, partition, manage,
repair, insure, improve and generally to deal in and with any and all real
estate from time to time comprised in the trust assets, all on such terms as the
trustees shall think fit, including power to tear down or demolish any buildings
thereon and power to erect others in their stead, and power to give leases for
periods that may extend beyond the duration of the trust.
13. To hold, manage, invest and account for any two or more trusts
under this Declaration as a single fund, making the division thereof only upon
the books of account of the trustees by appropriate entries therein, and in such
event to allocate to each such trust its proportionate part of the principal and
income of the common fund and to charge against each such trust its
proportionate part of the expenses of administrating the common fund.
14. To make, execute, seal, acknowledge and deliver any and all such
assignments, deeds, contracts and other instruments as the trustees shall think
proper to transfer or convey the trust assets or any part or parts thereof or
any interest therein, or in any way relating to or affecting the same or any
part thereof, or to carry out any of the powers in this instrument contained.
15. To hold property, real or personal, in the name or names of a
nominee or nominees, who or which may be one or more natural or corporate
persons, and, as to shares of stock, evidences of indebtedness or other
certificates or securities, to hold the same endorsed in blank, or in street
certificates, so called, or otherwise in bearer form, and in all such cases
without disclosure of the trusts hereunder.
16. In making any division or distribution of the trust property or any
separate trust estate, or any portion of any thereof, to value, in accordance
with recognized methods of valuing property, all property to be divided or
distributed, and to make division or distribution thereof
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as far as the trustees shall think practicable by setting off to each
beneficiary or to each separate trust estate approximately proportionate amounts
of each kind of security or other property included in the property to be
divided or distributed, and by turning over or allocating in kind at the
valuations so made by the trustees any property not so set off, or by converting
all or any part of the property to be divided or distributed into money and
dividing or distributing the same, or by making division or distribution partly
in one way and partly in the other, and further including power to allocate
undivided interests in any asset in appropriate fractions or shares to any two
beneficiaries or separate trust estates.
Notwithstanding anything to the contrary elsewhere in this Declaration
contained, each power hereinbefore in this Declaration conferred on the trustees
shall be deemed to be so conferred, in relation to each trust hereunder, for the
term of such trust. As to each power which is hereinbefore in this Article
defined and is applicable to the purposes of liquidation or distribution of
assets, the trustees shall have and may exercise, in relation to each trust
hereunder and for such purposes, a like power from the termination of such trust
until all assets thereof have been disposed of or distributed. All powers and
discretions which according to this or any other Article hereof are given to the
trustees may be exercised by the trustee or trustees for the time being
hereunder and may be exercised without application to any court for authority or
permission, but nothing in this sentence contained shall be deemed to permit the
exercise otherwise than by the disinterested trustee or trustees of powers or
discretions expressly given to or stated to be exercisable by the disinterested
trustee or trustees hereunder.
ARTICLE SEVENTH: No firm, association, trust or corporation any of
whose securities are included in the trust property, and no transfer or other
agent of any such firm, association, trust or corporation, and no purchaser
from, or anyone else (including beneficiaries hereunder) having any dealings
(including, but not limited to, receipts of trust property) with, the trustees
in good faith shall (i) be responsible for the application of any money or other
thing of value paid to, or in accordance with the direction of, the trustees, or
for carrying out any of the provisions of this instrument (the receipt of the
trustees being a full discharge), or (ii) be under any obligation to ascertain
or inquire into the power or authority of the trustees to purchase, sell,
exchange, transfer, partition, invest, lend, mortgage, pledge, or otherwise
encumber, lease, let, distribute, vote (including the giving of proxies), apply
or otherwise in any way dispose of or deal with any of such securities or any
other property included in the trust property or to receive or make any payment,
transfer, distribution or application or to execute and deliver any instrument
or to take any other action of any kind taken or contemplated by the trustees,
or be under any obligation to ascertain or inquire into the reasonableness or
propriety of any such action taken or contemplated by the trustees.
Any certificate in writing executed by the trustees or any trustee
hereunder setting forth the existence of any facts the existence of which is
necessary or proper to authorize the execution of any instrument or the taking
of any action by the trustees or such trustee shall, as to all persons acting in
good faith in reliance thereon, be conclusive evidence of the truth of the
statements made in such certificate and of the existence of the facts therein
stated to exist.
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ARTICLE EIGHTH: The trustees shall, at least as often as annually after
the receipt by them of any property, with respect to each separate trust estate
then held by them hereunder, render an account of the administration thereof to
the beneficiary thereof, and the acquiescence by the beneficiary in the matters
and transactions stated therein or reflected thereby shall, as to all such
matters and transactions so acquiesced in, be final and binding upon the
beneficiary. For the purposes of this Article, (a) an account shall be deemed to
be rendered to the beneficiary upon the delivery or mailing, postage prepaid, of
a copy thereof to the beneficiary and (b) the beneficiary shall be deemed to
have acquiesced in a matter or transaction, stated in or reflected by any such
account (i) if the period of one year from the time such account is rendered to
the beneficiary shall elapse without the beneficiary having objected to said
matter or transaction by instrument in writing delivered or mailed, postage
prepaid, to any one or more of the trustees hereunder or (ii) upon the written
assent of the beneficiary at any time to said matter or transaction and/or to
said account. The books of account of the trustees hereunder shall at all
reasonable times be open to inspection by each and every beneficiary.
ARTICLE NINTH: Any trustee hereunder may at any time resign as such by
instrument in writing signed by such trustee and delivered, or mailed by
registered or certified mail, postage prepaid to the person, or to any person,
to whom, in accordance with the provisions of the immediately foregoing Article
hereof, an account would be required to be rendered if an account were then to
be rendered of each trust then being administered hereunder.
Forthwith upon his acceptance in writing of the office of trustee
hereunder, Michael J. Bohnen, of said Newton, shall be and become a trustee
hereunder. Subject to the foregoing appointment, if and whenever there shall be
fewer than two persons acting as trustees hereunder, a person shall be appointed
to act as a trustee hereunder, each such appointment to be by instrument in
writing signed by the then senior member (in point of age) of the firm of
Nutter, McClennen & Fish, LLP, of Boston, Massachusetts, or of any firm which is
an immediate or more remote successor to said named firm and each such
appointment to be consistent with the requirement that at all times at least one
of the trustees hereunder shall be a disinterested trustee, and each person so
appointed shall, upon such person's acceptance in writing of the office of
trustee hereunder, be and become such trustee.
Each person who shall become a trustee hereunder in accordance with the
foregoing provisions hereof shall thenceforth have all and the same rights,
powers, duties and exemptions herein given to the original trustees and shall be
vested with title to the trust property, jointly with any other person or
persons then acting as trustee or trustees hereunder, all without the necessity
of any act of transfer or conveyance. No bond shall ever be required of any
original trustee hereunder or of any person who shall become a trustee hereunder
in accordance with the foregoing provisions hereof.
As used in this Declaration, the word "trustees" and any pronoun
referring thereto, shall be deemed to mean the trustees or trustee for the time
being hereunder, wherever the context so permits, and the expression
"disinterested" trustee, and any pronoun referring thereto, shall be deemed to
mean said Michael J. Bohnen or any successor trustee appointed pursuant to the
8
<PAGE>
foregoing provisions of this Article who has no beneficial interest, vested or
contingent, in either the principal or the net income of the trust property, or
of any portion thereof.
Except as elsewhere in this Declaration expressly otherwise stated, the
trustees shall use reasonable discretion in exercising each of the powers herein
granted to them and may be restrained from doing otherwise, but, notwithstanding
any language, or inference therefrom, to the contrary (or in limitation hereof)
anywhere in this instrument contained, no original trustee or succeeding trustee
hereunder hereinbefore named or who shall become such trustee as hereinbefore
provided shall under any circumstances or in any event be held liable or
accountable out of such trustee's personal assets or be deprived of compensation
by reason of any action taken, suffered or omitted in good faith, or be so
liable or accountable for more money or other property than such trustee
actually receives, or be so liable, accountable or deprived by reason of honest
errors of judgment or mistakes of fact or law, or by reason of the existence or
failure to disclose the existence of any personal or adverse interest, or by
reason of anything except such trustee's own personal and willful malfeasances
and defaults.
ARTICLE TENTH: Notwithstanding anything to the contrary elsewhere in
this instrument contained, this Declaration of Trust and the trusts hereby
created may be altered, amended or terminated by instrument in writing signed
and acknowledged by (i) such of said Andrew D. Gosman and said Michael M. Gosman
as is then living and (ii) the disinterested trustee then acting hereunder,
PROVIDED, HOWEVER, that no such instrument according to the purport of which any
beneficial interest, vested or contingent, in either the principal or net income
of the trust property, or, of any portion thereof, shall ever become payable,
transferable or distributable to or for the benefit of any person who is then a
disinterested trustee hereunder, his or her estate, his or her creditors or the
creditors of his or her estate, shall be valid or effective to any extent
whatsoever. No assent of any other person to any such instrument of alteration
or amendment or termination shall be required. The power to alter or amend this
Declaration of Trust and the trusts hereby created shall not be exhausted by a
single exercise thereof but may be exercised from time to time. In the event of
the termination of this Declaration of Trust and the trusts hereby created in
accordance with the foregoing provisions of this Article, the trustees shall,
notwithstanding any provisions to the contrary hereinbefore in this instrument
contained, pay over, transfer and deliver all property then held by them
hereunder to the donor, all upon payment to the trustees of all lawful and
proper charges then existing in their favor upon or against the trust property.
ARTICLE ELEVENTH: The validity and effect of the provisions of this
Declaration of Trust shall be determined and construed in accordance with the
laws of the Commonwealth of
9
<PAGE>
Massachusetts, in which Commonwealth each of said Andrew D. Gosman and said
Michael M. Gosman is domiciled.
IN WITNESS WHEREOF, said Abraham D. Gosman, the trustee hereunder, has
set his hand and seal, in the presence of the individuals witnessing at his
request, all hereunto and to one other instrument of like date and tenor, all as
of the date first above written.
/s/ Abraham D. Gosman
---------------------
Trustee
We certify that this instrument was signed and declared by said Abraham
D. Gosman in our presence, and that we, in his presence and in the presence of
each other, have signed our names as witnesses.
/s/ Cynthia Rice 3189 Indian Trail, Lantana FL
- ------------------------ -------------------------------------------------
Witness Address
/s/ Jennifer M. Rice 12930 Persimmon Blvd. Royal Palm Beach, FL 33411
- ------------------------ -------------------------------------------------
Witness Address
10
<PAGE>
Trustee Acceptance
I, Michael J. Bohnen, hereby accept the office of trustee under the
"Gosman CareMatrix Trust".
WITNESS my hand and seal.
/s/ Michael J. Bohnen
---------------------
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss November 20, 1996
Then personally appeared the above-named Michael J. Bohnen and
acknowledged the foregoing instrument to be his free act and deed,
Before me,
/s/ Jo A. Mayhew
-----------------------------------------------
Notary Public
My commission expires:
JO A. MAYHEW, Notary Public
My Commission Expires 3/13/03.
--------
<PAGE>
Assignment
The undersigned Andrew D. Gosman, of Newton, Massachusetts, for nominal
nonmonetary consideration, receipt whereof is hereby acknowledged, hereby
assigns, sets over and transfers unto Abraham D. Gosman, of Palm Beach, Florida,
as he is trustee of that certain Declaration of Trust executed under date of
July 3, 1996, and known as "Gosman CareMatrix Trust", (the "Assignee"), the
following listed shares of stock ("shares of stock"), upon the conditions and
subject to the limitations hereinafter specified, to be dealt with by said
trustee as a part of the separate trust estate for the benefit of the
undersigned held under the provisions of Article Third of said Declaration. The
shares of stock that are subject to this Assignment are as follows:
1. 14,948.6 A.M.A. New Jersey Development, Inc., common;
2. 1,549.8 CareMatrix of Amethyst Arbor, Inc., common;
3. 1,549.8 CareMatrix of Emerald Springs, Inc., common;
4. 1,549.8 CareMatrix of Darien, Inc., common;
5. 1,549.8 CareMatrix of Massachusetts, Inc., common;
6. 1,549.8 CareMatrix of ARI, Inc., common;
7. 1,549.8 CareMatrix of Cypress Station, Inc., common;
8. 1,549.8 CareMatrix of Amber Lights, Inc., common;
9. 1,549.8 CarePlex of Miami Shores, Inc., common;
10. 1,549.8 CarePlex of Cragganmore, Inc., common; and
11. 1,549.8 CarePlex of Homestead, Inc., common;
Notwithstanding anything to the contrary hereinbefore in this
instrument provided, and in accordance with the provisions of Section 1 of
Article Fourth of said Declaration of Trust, the undersigned hereby expressly
directs that the right and power to vote and to execute waivers and consents
(hereinafter referred to as "voting rights") with respect to the shares of stock
hereinbefore in this instrument listed, shall be exercisable in the following
manner:
1. Said Abraham D. Gosman shall have the full and unqualified right and
power to exercise voting rights with respect to fifty-eight and nine-tenths
percent (58.9%) of the shares of stock of each corporation listed above, such
right to be and remain exercisable by said Abraham D. Gosman (irrespective of
any termination of the separate trust estate for the benefit of the undersigned
held under said Article Third) until the first to occur of (i) the death of said
Abraham D. Gosman or (ii) 12:00 midnight December 31, 2010.
2. The undersigned hereby expressly reserves the voting rights with
respect to the remaining forty-one and one tenth percent (41.1%) of the shares
of stock of each corporation listed above.
3. As used in this instrument, the expression "shares of stock" shall
be deemed to include not only any shares stock listed above but also any shares
of stock that the Assignee may receive on account of any stock dividends or
stock splits with respect to any shares of stock
<PAGE>
so listed and also any shares of stock received in connection with any exchange
of such stock or its proceeds or any merger or reorganization or transfer of
assets.
IN WITNESS WHEREOF, the undersigned Andrew D. Gosman has set his hand
and seal, all as of this 19th day of September, 1996.
/s/ Andrew D. Gosman
--------------------------------
Andrew D. Gosman
The undersigned, Abraham D. Gosman, as trustee of said "Gosman
CareMatrix Trust" hereby accepts the foregoing assignment, upon the terms
specified, all as of this 19th day of September, 1996.
/s/ Abraham D. Gosman
--------------------------------
Abraham D. Gosman
as trustee of "Gosman
CareMatrix Trust" and
not individually
<PAGE>
Assignment
The undersigned Michael M. Gosman, of Weston, Massachusetts, for
nominal nonmonetary consideration, receipt whereof is hereby acknowledged,
hereby assigns, sets over and transfers unto Abraham D. Gosman, of Palm Beach,
Florida, as he is trustee of that certain Declaration of Trust executed under
date of July 3, 1996, and known as "Gosman CareMatrix Trust", (the "Assignee")
the following listed shares of stock ("shares of stock"), upon the conditions
and subject to the limitations hereinafter specified, to be dealt with by said
trustee as a part of the separate trust estate for the benefit of the
undersigned held under the provisions of Article Third of said Declaration. The
shares of stock that are subject to this Assignment are as follows:
1. 14,948.6 A.M.A. New Jersey Development, Inc., common;
2. 1,549.8 CareMatrix of Amethyst Arbor, Inc., common;
3. 1,549.8 CareMatrix of Emerald Springs, Inc., common;
4. 1,549.8 CareMatrix of Darien, Inc., common;
5. 1,549.8 CareMatrix of Massachusetts, Inc., common;
6. 1,549.8 CareMatrix of ARI, Inc., common;
7. 1,549.8 CareMatrix of Cypress Station, Inc., common;
8. 1,549.8 CareMatrix of Amber Lights, Inc., common;
9. 1,549.8 CarePlex of Miami Shores, Inc., common;
10. 1,549.8 CarePlex of Cragganmore, Inc., common; and
11. 1,549.8 CarePlex of Homestead, Inc., common;
Notwithstanding anything to the contrary hereinbefore in this
instrument provided, and in accordance with the provisions of Section 1 of
Article Fourth of said Declaration of Trust, the undersigned hereby expressly
directs that the right and power to vote and to execute waivers and consents
(hereinafter referred to as "voting rights") with respect to the shares of stock
hereinbefore in this instrument listed, shall be exercisable in the following
manner:
1. Said Abraham D. Gosman shall have the full and unqualified right and
power to exercise voting rights with respect to fifty-eight and nine-tenths
percent (58.9%) of the shares of stock of each corporation listed above, such
right to be and remain exercisable by said Abraham D. Gosman (irrespective of
any termination of the separate trust estate for the benefit of the undersigned
held under said Article Third) until the first to occur of (i) the death of said
Abraham D. Gosman or (ii) 12:00 midnight December 31, 2010.
2. The undersigned hereby expressly reserves the voting rights with
respect to the remaining forty-one and one tenth percent (41.1%) of the shares
of stock of each corporation listed above.
3. As used in this instrument, the expression "shares of stock" shall
be deemed to include not only any shares stock listed above but also any shares
of stock that the Assignee may receive on account of any stock dividends or
stock splits with respect to any shares of stock
<PAGE>
so listed and also any shares of stock received in connection with any exchange
of such stock or its proceeds or any merger or reorganization or transfer of
assets.
IN WITNESS WHEREOF, the undersigned Michael M. Gosman has set his hand
and seal, all as of this 19th day of September, 1996.
/s/ Michael M. Gosman
--------------------------------
Michael M. Gosman
The undersigned, Abraham D. Gosman, as trustee of said "Gosman
CareMatrix Trust" hereby accepts the foregoing assignment, upon the terms
specified, all as of this 19th day of September, 1996.
/s/ Abraham D. Gosman
--------------------------------
Abraham D. Gosman
as trustee of "Gosman
CareMatrix Trust" and
not individually
