This document contains pages. The exhibit index is located on page .
As filed with the Securities and Exchange Commission on December 13, 1996
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CAREMATRIX CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 04-3069586
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
197 First Avenue, Needham, Massachusetts, 02194
(Address of principal executive offices)
1996 EQUITY INCENTIVE PLAN
1991 COMBINATION STOCK OPTION PLAN
1995 NON-QUALIFIED STOCK OPTION PLAN
(Full title of plans)
Robert M. Kaufman Copy to:
CareMatrix Corporation Michael J. Bohnen, Esq.
197 First Avenue Nutter, McClennen & Fish, LLP
Needham, Massachusetts 02194 One International Place
(617) 433-1000 Boston, Massachusetts 02110-2699
(Name, address and telephone (617) 439-2000
number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed Proposed
maximum maximum
Title of each class of securities to Amount being offering price aggregate offering Amount of
be registered registered (1) per share(2) price registration fee
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------
Common Stock, 727,540 Shares $12.59 $9,159,728.60
$.05 par value per share 908,460 Shares $13.44 $12,209,702.40
- -----------------------------------------------------------------------------------------------------------------------
Total 1,636,000 Shares $13.06 $21,369,431 $7,369
=======================================================================================================================
</TABLE>
(1) This Registration Statement covers 1,636,000 shares of Common Stock under
the 1996 Equity Incentive Plan the 1991 Combination Stock Option Plan and
the 1995 Non-Qualified Stock Option Plan. In addition, this Registration
Statement also covers an indeterminate number of additional shares of
Common Stock which may be issued under said Plan as a result of a stock
split, stock dividend or other similar transaction.
(2) Calculated pursuant to Rule 457(h) under the Securities Act of 1933 based
upon the average price of exercise options to purchase 727,540 shares of
Common Stock and the average of the high and low prices per share of Common
Stock quoted on American Stock Exchange on December 11, 1996 with respect
to 908,460 shares of Common Stock.
===============================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
CareMatrix Corporation. (the "Company") hereby incorporates by
reference in this Registration Statement the following documents and information
heretofore filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Prospectus dated October 24, 1996 (the "Prospectus")
filed with the Commission on October 24, 1996 pursuant to Rule 424(b) under the
Securities Act of 1933, as amended;
(b) The description of the Company's Common Stock, par value $.05 per
share, contained in the Company's Registration Statement on Form S-1, filed with
the Commission on September 5, 1996, and as amended on October 7, 1996 and
October 22, 1996;
(c) The Company's financial report on Form 10-K for the fiscal year
ended December 31, 1995, filed with the Commission pursuant to Section 15(d)
of the Exchange Act;
(d) The Company's Report on Form 10-Q for the quarter ended March 30,
1996 filed with the Commission on May 15, 1996;
(e) The Company's Report on Form 10-Q for the quarter ended June 30,
1996, filed with the Commission on July 31, 1996;
(f) The Company's Report on Form 10-Q for the quarter ended September
30, 1996, filed with the Commission on November 14, 1996;
(g) The Company's 1995 Annual Report; and
(h) The Company's Report on Form 8-K filed with the Commission on July
15, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of any 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 such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that any other subsequently filed document which also is incorporated or
deemed to be incorporated by reference herein modifies or supersedes such
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<PAGE>
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the shares of Common Stock offered hereunder has been
passed upon by Nutter, McClennen & Fish, LLP and Robinson & Cole.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Company is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law, as amended, which provides that a
corporation may indemnify any person who was or is a party to 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 the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceedings, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any person 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 he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless and only to the extent that
the Delaware Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite an adjudication of
liability, but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper. The Company's Certificate of
Incorporation provides that the Company shall indemnify its directors and
officers to the full extent permitted by the law of the State of Delaware.
The Company's Certificate of Incorporation provides that the Company's
directors shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary
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duty as a director, except to the extent that exculpation from liability is not
permitted under the Delaware General Corporation Law as in effect at the time
such liability is determined.
The Company maintains an indemnification insurance policy covering all
directors and officers of the Company and its subsidiaries.
Item 7. Exemption from Registration.
---------------------------
Not applicable.
Item 8. Exhibits.
-------
See the Exhibit Index immediately preceding the exhibits attached
hereto.
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, as amended (the
"Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement; 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 with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
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(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions of the Delaware General Corporation
Law and the registrant's certificate of incorporation and by-laws, or otherwise,
the registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or a 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 Securities Act and will be governed by
the final adjudication of such issue.
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<PAGE>
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Needham, Commonwealth of Massachusetts, on the
day 16 of December 1996.
CAREMATRIX CORPORATION
By: /s/ Robert M. Kaufman
----------------------
Robert M. Kaufman
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below on this Registration Statement hereby constitutes and appoints
Robert M. Kaufman, James M. Clary, III, Michael J. Bohnen and Alexander S.
Glovsky, and each of them, with full power to act without the other, his or her
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities (until revoked in writing) to sign any and all amendments
(including post-effective amendments and amendments thereto) to this
Registration Statement on Form S-8 of the registrant, and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary fully to all intents and purposes as
he or she might or could do in person thereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
___________________________ Chairman of the Board ___________, 1996
Abraham D. Gosman
/s/ Robert M. Kaufman
___________________________ President, Treasurer, December 16, 1996
Robert M. Kaufman Principle Executive Officer
and
Principal Accounting Officer
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<PAGE>
Signature Title Date
--------- ----- ----
___________________________ Vice Chairman and Director ___________, 1996
Andrew D. Gosman
/s/ Michael J. Doyle
___________________________ Chief Executive Officer and December 17, 1996
Michael J. Doyle Director
/s/ Michael M. Gosman
___________________________ Executive Vice President and December 17, 1996
Michael M. Gosman Director
/s/ Donald J. Amaral
___________________________ Director December 13, 1996
Donald J. Amaral
/s/ H. Loy Anderson, Jr.
___________________________ Director December 13, 1996
H. Loy Anderson, Jr.
/s/ Bedros Baharian
___________________________ Director December 12, 1996
Rev. Bedros Baharian
___________________________ Director ___________, 1996
Stephen E. Ronai
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Title
- ----------- -----
<S> <C>
Exhibit 4.1 1996 Equity Incentive Plan, as amended
Exhibit 4.2 1991 Combination Stock Option Plan, as amended
Exhibit 4.3 1995 Non-Qualified Stock Option Plan, as amended
Exhibit 5.1 Opinion of Nutter, McClennen & Fish, LLP
Exhibit 5.2 Opinion of Robinson & Cole
Exhibit 23.1 Consent of Nutter, McClennen & Fish, LLP (contained in Exhibit 5.1)
Exhibit 23.2 Consent of Robinson & Cole (contained in Exhibit 5.2)
Exhibit 24 Power of Attorney (contained in Part II of the Registration Statement)
</TABLE>
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EXHIBIT 4.1
CAREMATRIX CORPORATION
1996 EQUITY INCENTIVE PLAN
(as amended October 14, 1996)
Section 1. Purpose and Duration
1.1 Purposes. The purposes of the Plan are to attract, retain and
motivate employees and consultants of the Company, its Parent (if any), and any
present or future Subsidiaries to enable them to participate in the growth of
the Company by providing for or increasing the proprietary interests of such
persons in the Company.
1.2 Effective Date. The Plan is effective as of its adoption by the
Board, subject to approval by the stockholders of the Company. Prior to such
stockholder approval, the Board may grant Awards conditioned on stockholder
approval. If such stockholder approval is not obtained at or before the first
annual meeting of stockholders to occur after the adoption of the Plan by the
Board but in any event within twelve months after adoption by the Board, the
Plan and any Awards made thereunder shall be null and void.
1.3 Expiration Date. The Plan shall expire on September 1, 2006. In no
event shall any Awards be made under the Plan after the expiration of the Plan,
but Awards previously granted may extend beyond expiration of the Plan.
Section 2. Definitions
As used in the Plan, the following capitalized words shall have the
meanings indicated below:
"1934 Act" means the Securities Exchange Act of 1934, as amended.
Reference to a specific section of the 1934 Act or regulation thereunder shall
include such section or regulation, any valid regulation promulgated under such
section, and any comparable provision of any future legislation or regulation
amending, supplementing or superseding such section or regulation.
"Award" means, individually or collectively, a grant under the Plan of
Options, SARs, Performance Shares, Restricted Stock or Stock Units.
"Award Agreement" means the written agreement setting forth the terms
and provisions applicable to each Award granted under the Plan.
"Board" means the Board of Directors of the Company.
<PAGE>
"Code" means the Internal Revenue Code of 1986, as amended. Reference
to a specific section of the Code or regulation thereunder shall include such
section or regulation, any valid regulation promulgated under such section, and
any comparable provision of any future legislation or regulation amending,
supplementing or superseding such section or regulation.
"Committee" means any committee of the Board appointed by the Board to
administer the Plan in accordance with Section 3.1.
"Company" means CareMatrix Corporation, a Delaware corporation, or any
successor thereto.
"Director" means any individual who is a member of the Board.
"Fair Market Value" means, with respect to a Share, the fair market
thereof as of the relevant date of determination, as determined in accordance
with a valuation methodology approved by the Board in good faith (or in the
absence of such determination, the closing price of the Shares as reported by
The Nasdaq Stock Market's National Market or any successor thereto, on the
applicable date of determination (or if such date shall not be a trading day, on
the last trading day previous thereto)) but in no event less than, in the case
of newly issued stock, the par value per Share.
"Grant Date" means the effective date of an Award as specified by the
Board and set forth in the applicable Award Agreement.
"Incentive Stock Option" or "ISO" means an option to purchase Shares
awarded to a Participant under Section 6 of the Plan that is intended to meet
the requirements of Section 422 of the Code.
"Nonqualified Stock Option" or "NQO" means an option to purchase Shares
awarded to a Participant under Section 6 of the Plan that is not intended to be
an ISO.
"Option" means an ISO or an NQO.
"Parent" means a "parent corporation" as that term is defined in
Section 424 of the Code.
"Participant" means an individual eligible to receive Awards under the
Plan who has been selected by the Board to receive an Award under the Plan.
"Performance Cycle" means the period of time selected by the Board
during which performance is measured for the purpose of determining the extent
to which an Award of Performance Shares has been earned. More than one
Performance Cycle may be in
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progress at any one time and the duration of Performance Cycles may differ from
each other.
"Performance Share" means a Share awarded to a Participant under
Section 8 of the Plan that entitles the Participant to acquire Shares upon the
attainment of specified performance goals.
"Plan" means the Equity Incentive Plan set forth in this document and
as hereafter amended from time to time in accordance with Section 13.
"Restricted Period" means the period of time selected by the Board
during which Shares of Restricted Stock are subject to forfeiture and/or
restrictions on transferability.
"Restricted Stock" means Shares awarded to a Participant under Section
9 of the Plan pursuant to an Award that entitles the Participant to acquire
Shares for a purchase price (which may be zero), subject to such conditions,
including a Company right during a specified period or periods to repurchase
such Shares at their original purchase price (or to require forfeiture of such
Shares if the purchase price was zero) upon the Participant's termination of
employment.
"SAR" or "Stock Appreciation Right" means an Award that is designated
as an SAR pursuant to Section 7 of the Plan, granted alone or in connection with
a related Award, entitling a Participant to receive an amount in cash or Shares
or a combination thereof having a value equal to (or if the Board shall so
determine at time of grant, less than) the excess of the Fair Market Value of a
Share on the date of exercise over the Fair Market Value of a Share on the Grant
Date (or over the Option exercise price, if the Stock Appreciation Right was
granted in tandem with an Option) multiplied by the number of Shares with
respect to which the Stock Appreciation Right is exercised.
"Shares" means shares of the Company's common stock, par value $0.05
per share.
"Stock Unit" means an Award of a Share or a unit valued in whole or in
part by reference to, or otherwise based on, the value of a Share, granted to a
Participant under Section 10 of the Plan.
"Subsidiary" means a "subsidiary corporation" as that term is defined
in Section 424 of the Code.
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Section 3. Administration of the Plan
3.1 The Board. The Plan shall be administered by the Board. The Board
may, in its discretion, delegate some or all of its powers with respect to the
Plan to the Committee, in which event all references in the Plan (as
appropriate) shall be deemed to refer to the Committee. The Committee, if one is
appointed, shall consist of two or more Non-Employee Directors (as defined in
the 1934 Act).
3.2 Authority of the Board. The Board shall have the authority to
adopt, alter and repeal such administrative rules, guidelines and practices
governing the operation of the Plan as it shall consider advisable from time to
time, to interpret the provisions of the Plan and any Award, and to decide all
disputes arising in connection with the Plan. The Board's decisions and
interpretations shall be final and binding.
Section 4. Eligibility
4.1 Participants. The persons eligible to receive Awards under the Plan
shall be all executive officers of the Company, its Parent (if any), and any
Subsidiaries and other employees, consultants and advisers who, in the opinion
of the Board, are in a position to make a contribution to the success of the
Company, its Parent (if any), and any Subsidiaries. Directors, including
directors who are not employees, of the Company, its Parent (if any), and any
Subsidiaries, shall be eligible to receive Awards under the Plan.
Section 5. Stock Available for Awards
5.1 Number of Shares. Awards may be made under the Plan for up to One
Million Two Hundred Thousand (1,200,000) Shares. Shares issued under the Plan
may consist in whole or in part of authorized but unissued Shares or treasury
Shares.
5.2 Lapsed, Forfeited or Expired Awards. If any Award in respect of
Shares expires or is terminated before exercise or is forfeited for any reason,
the Shares subject to such Award, to the extent of such expiration, termination,
or forfeiture, shall again be available for award under the Plan.
5.3 Maximum Number of Shares to a Single Participant in any Calendar
Year. In no event shall any Participant receive in any calendar year Awards
under the Plan and any other grants for more than One Hundred Twenty Thousand
(120,000) Shares.
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Section 6 Stock Options
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
the Board may award Options and determine the number of shares to be covered by
each Option, the exercise price therefor, the term of the Option, and any other
conditions and limitations applicable to the exercise of the Option. The Board
may grant ISOs, NQOs or a combination thereof.
6.2 Exercise Price. Subject to the provisions of this Section 6, the
exercise price for each Option shall be determined by the Board in its sole
discretion.
6.3 Restrictions on Option Transferability and Exercisability. No
Option shall be transferable by the Participant other than by will or the laws
of descent and distribution, and all Options shall be exercisable, during the
Participant's lifetime, only by the Participant; provided, however, that the
Board may provide that an NQO is transferable by the Participant and exercisable
by persons other than the Participant upon such terms and conditions as the
Board shall determine.
6.4 Certain Additional Provisions for Incentive Stock Options
6.4.1 Exercise Price. In the case of an ISO, the exercise price shall be
not less than one hundred percent (100%) of the Fair Market Value per Share on
the Grant Date; provided, however, that if on the Grant Date the Participant
(together with persons whose stock ownership is attributed to the Participant
pursuant to Section 424(d) of the Code) owns stock possessing more than ten
percent (10%) of the total combined voting power of all classes of stock of the
Company, its Parent (if any) or any Subsidiaries, the exercise price shall be
not less than one hundred and ten percent (110%) of the Fair Market Value of a
Share on the Grant Date.
6.4.2 Exercisability. Subject to Section 12.3, the aggregate Fair Market
Value (determined on the Grant Date(s)) of the Shares with respect to which ISOs
are exercisable for the first time by any Participant during any calendar year
(under all plans of the Company, its Parent (if any) and any Subsidiaries) shall
not exceed $100,000.
6.4.3 Eligibility. ISOs may be granted only to persons who are
employees of the Company, its Parent (if any) or any Subsidiaries on the Grant
Date.
6.4.4 Expiration. No ISO may be exercised after the expiration of one day
less than ten (10) years from the Grant Date; provided, however, that if the
Option is granted to a Participant who, together with persons whose stock
ownership is attributed to the Participant pursuant to Section 424(d) of the
Code, owns stock possessing more than ten percent (10%) of the total combined
voting power of all classes of stock of the Company,
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its Parent (if any) or any Subsidiaries, the ISO may not be exercised after the
expiration of one day less than five (5) years from the Grant Date.
6.4.5 Compliance with Section 422 of the Code. The terms and conditions
of ISOs shall be subject to and comply with Section 422 of the Code or any
successor provision.
6.4.6 Notice to Company of Disqualifying Disposition. Each Participant
who receives an ISO shall notify the Company in writing immediately after the
Participant makes a Disqualifying Disposition of any Shares received pursuant to
the exercise of an ISO. The term "Disqualifying Disposition" means any
disposition (including any sale) of Shares before the later of (a) two years
after the Participant was granted the ISO under which he acquired such Shares,
or (b) one year after the Participant acquired such Shares by exercising the
ISO.
6.4.7 Substitute Options. Notwithstanding the provisions of Section 6.4.1,
in the event that the Company, its Parent (if any) or any Subsidiary consummates
a transaction described in Section 424(a) of the Code (relating to the
acquisition of property or stock from an unrelated corporation), individuals who
become employees or consultants of the Company, its Parent (if any) or any
Subsidiary on account of such transaction may be granted ISOs in substitution
for options granted by their former employer. The Board, in its sole discretion
and consistent with Section 424(a) of the Code, shall determine the exercise
price of such substitute Options.
6.5 NQO Presumption. Options granted pursuant to the Plan shall be
presumed to be NQOs unless expressly designated ISOs.
Section 7 Stock Appreciation Rights
7.1 Grant of SARs. Subject to the terms and provisions of the Plan, the
Board may award SARs in tandem with another Award (at or after the Grant Date of
the other Award), or alone and unrelated to another Award, and may determine the
terms and conditions applicable thereto, including the form of payment.
7.2 Termination of SARs. SARs granted in tandem with an ISO shall
terminate to the extent that the related ISO is exercised, and the related ISO
shall terminate to the extent that the tandem SARs are exercised.
Section 8 Performance Shares
8.1 Grant of Performance Shares. The Board may award Performance Shares
to Participants and determine the performance goals applicable to each such
Award, the
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number of Shares for each Performance Cycle, the duration of each Performance
Cycle and all other limitations and conditions applicable to the awarded
Performance Shares. The payment value of each Performance Share shall be equal
to the Fair Market Value of one Share on the date the Performance Share is
earned or, in the discretion of the Board, on the date the Board determines that
the Performance Share has been earned.
8.2 Adjustment of Performance Goals. Except as provided in an Award,
during any Performance Cycle, the Board may adjust the performance goals for
such Performance Cycle as it deems equitable in recognition of unusual or
non-recurring events affecting the Company, changes in applicable tax laws or
accounting principles, or such other factors as the Board shall determine.
8.3 Written Certification. As soon as practical after the end of a
Performance Cycle, the Board shall certify in writing the extent to which the
performance goals applicable to each Participant for the Performance Cycle were
achieved or exceeded and the number of Performance Shares which have been earned
on the basis of performance in relation to the established performance goals.
Section 9 Restricted Stock
9.1 Grant of Restricted Stock. The Board may award Shares of Restricted
Stock and determine the purchase price, if any, therefor, the duration of the
Restricted Period and the conditions under which the Shares may be forfeited to
or repurchased by the Company and the other terms and conditions of such Awards.
The Board may modify or waive the restrictions with respect to any Restricted
Stock. Shares of Restricted Stock may be issued for no cash consideration or
such minimum consideration as may be required by applicable law.
9.2 Transferability. Shares of Restricted Stock may not be sold,
assigned, transferred, pledged or otherwise encumbered, except as permitted by
the Board, during the Restricted Period.
9.3 Evidence of Award. Shares of Restricted Stock shall be evidenced in
such manner as the Board may determine. Any certificates issued in respect of
Shares of Restricted Stock shall be registered in the name of the Participant
and unless otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the Company. At the
expiration of the Restricted Period, the Company shall deliver such certificates
and stock power to the Participant.
9.4 Shareholder Rights. A Participant shall have all the rights of a
shareholder with respect to Restricted Stock awarded, including voting and
dividend rights, unless otherwise provided in the Award Agreement.
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Section 10. Stock Units
10.1 Grant of Stock Units. Subject to the terms and provisions of the
Plan, the Board may award Stock Units subject to such terms, restrictions,
conditions, performance criteria, vesting requirements and payment rules as the
Board shall determine.
10.2 Consideration. Shares awarded in connection with a Stock Unit
shall be issued for no cash consideration or such minimum consideration as may
be required by applicable law.
Section 11 Other Awards
11.1 Grant of Other Awards. The Board shall have the authority to
specify the terms and provisions of other forms of equity-based or
equity-related Awards not described above which the Board determines to be
consistent with the purpose of the Plan and the interests of the Company, which
Awards may provide for cash payments based in whole or in part on the value or
future value of Shares, for the acquisition or future acquisition of Shares, or
any combination thereof. Other Awards may also include cash payments (including
the cash payment of dividend equivalents) under the Plan which may be based on
one or more criteria determined by the Board that are unrelated to the value of
the Shares and that may be granted in tandem with, or independent of, other
Awards under the Plan.
Section 12 General Provisions Applicable to Awards
12.1 Legal and Regulatory Matters. The delivery of Shares shall be
subject to compliance with (i) applicable federal and state laws and
regulations, (ii) the listing requirements of a stock exchange, if the
outstanding Shares are at the time listed on any such exchange, and (iii) the
Company's counsel's approval of all other legal matters in connection with the
issuance and delivery of such Shares. If the sale of Shares has not been
registered under the Securities Act of 1933, as amended, the Company may
require, as a condition to receipt of the Shares, such representations or
agreements as counsel for the Company may consider appropriate to avoid
violation of such Act and may require that the certificates evidencing such
Shares bear an appropriate legend restricting transfer.
12.2 Written Award Agreement. The terms and provisions of an Award
shall be set forth in a written Award Agreement approved by the Board and
delivered or made available to the Participant as soon as practicable following
the Grant Date. Where the Award is an Option Award, the Award Agreement shall
specify whether the Option is intended to be an ISO or a NQO.
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<PAGE>
12.3 Determination of Restrictions on the Award. The vesting,
exercisability, payment and other restrictions applicable to an Award (which may
include, without limitation, restrictions on transferability or provision for
mandatory resale to the Company) shall be determined by the Board and set forth
in the applicable Award Agreement. Notwithstanding the foregoing, the Board may
accelerate (i) the vesting or payment of any Award (including an ISO), (ii) the
lapse of restrictions on any Award (including an Award of Restricted Stock) or
(iii) the date on which any Option or SAR first becomes exercisable.
12.4 Mergers, etc. Notwithstanding any other provision of the Plan, in
the event of a consolidation or merger in which the Company is not the surviving
corporation or which results in the acquisition of substantially all the
Company's outstanding shares by a single person or entity or by a group of
persons and/or entities acting in concert, or in the event of the sale or
transfer of substantially all the Company's assets, then if the Board so
determines, all outstanding Awards shall terminate, provided that at least 20
days prior to the effective date of any such merger, consolidation or sale of
assets, the Board shall either (i) make all outstanding Awards exercisable
immediately prior to the consummation of such merger, consolidation or sale of
assets or (ii) if there is a surviving or acquiring corporation, arrange,
subject to consummation of the merger, consolidation or sale of assets, to have
that corporation or an affiliate of that corporation assume outstanding Awards
and/or grant to Participants replacement Awards, which Awards in the case of
ISOs shall satisfy, in the discretion of the Board, the requirements of section
424(a) of the Code.
12.5 Termination of Employment. For purposes of the Plan, the following
events shall not be deemed a termination of employment of a Participant: (i) a
transfer to the employment of the Company from its Parent (if any) or from a
Subsidiary, or from the Company to its Parent (if any) or to a Subsidiary, or
from one Subsidiary to another; or (ii) an approved leave of absence for
military service or sickness, or for any other purpose approved by the Company,
if the Participant's right to employment is guaranteed either by a statute or by
contract or under the policy pursuant to which the leave of absence was granted
or if the Board otherwise so provides in writing. For purposes of the Plan,
employees of a Subsidiary or Parent (if any) shall be deemed to have terminated
their employment on the date on which such Subsidiary or Parent ceases to be a
Subsidiary or Parent of the Company, as the case may be.
12.5.1 Date of Termination of Employment. The date of a Participant's
termination of employment for any reason shall be determined in the sole
discretion of the Board.
12.5.2 Effect of Termination of Employment. The Board shall have full
authority to determine and specify in the applicable Award Agreement the effect,
if any, that a Participant's termination of employment for any reason will have
on the vesting, exercisability, payment or lapse of restrictions applicable to
an outstanding Award.
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<PAGE>
12.6 Grant of Awards. Each Award may be made alone, in addition to or
in relation to any other Award. The terms of each Award need not be identical,
and the Board need not treat Participants uniformly.
12.7 Settlement of Awards. No Shares shall be delivered pursuant to any
exercise of an Award until payment in full of the price therefor, if any, is
received by the Company. Such payment may be made in whole or in part in cash or
by certified or bank check or, to the extent permitted by the Board at or after
the Grant Date, by delivery of a note or Shares, including Restricted Stock,
valued at their Fair Market Value on the date of delivery, or such other lawful
consideration or provision for the payment thereof as the Board shall determine.
12.8 Withholding Requirements and Arrangements. The Participant shall
pay to the Company or make provision satisfactory to the Board for payment of
any taxes required by law to be withheld in respect of Awards under the Plan no
later than the date of the event creating the tax liability. In the Board's
discretion, such tax obligations may be paid in whole or in part in Shares,
including Shares retained from the Award creating the tax obligation, valued at
their Fair Market Value on the date of delivery. The Company may, to the extent
permitted by law, deduct any such tax obligations from any payment of any kind
otherwise due to the Participant.
12.9 No Effect on Employment. The Plan shall not give rise to any right
on the part of any Participant to continue in the employ of the Company, its
Parent (if any) or any Subsidiary. The loss of existing or potential profit in
Awards granted under the Plan shall not constitute an element of damages in the
event of termination of the relationship of a Participant even if the
termination is in violation of an obligation of the Company to the Participant
by contract or otherwise.
12.10 No Rights as Shareholder. Subject to the provisions of the Plan and
the applicable Award Agreement, no Participant shall have any rights as a
shareholder with respect to any Shares to be distributed under the Plan until he
or she becomes the holder thereof.
12.11 Adjustments. Upon the happening of any of the following described
events, a Participant's rights with respect to Awards granted hereunder shall be
adjusted as hereinafter provided, unless otherwise specifically provided in the
Award Agreement.
12.11.1 Recapitalizations. In the event Shares shall be subdivided or
combined into a greater or smaller number of Shares or if, upon a merger,
consolidation, reorganization, split-up, liquidation, combination,
recapitalization or the like of the Company, Shares shall be exchanged for other
securities of the Company or of another entity, each Participant shall be
entitled, subject to the conditions herein stated, to purchase such number of
Shares or amount of other securities of the Company or such other entity as were
exchangeable for the number of Shares which such Participant would have been
entitled
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<PAGE>
to purchase except for such action, and appropriate adjustments shall be made in
the purchase price per Share to reflect such subdivision, combination, or
exchange.
12.11.2 Stock Dividends. In the event the Company shall issue any of its
shares as a stock dividend upon or with respect to the Shares at the time
subject to option hereunder, each Participant upon exercising an Award shall be
entitled to receive (for the purchase price paid upon such exercise) the Shares
as to which he is exercising his Award and, in addition thereto (at no
additional cost), such number of shares of the class or classes in which such
stock dividend or dividends were declared or paid, and such amount of cash in
lieu of any fractional shares, as he would have received if he had been the
holder of the Shares as to which he is exercising his Award at all times between
the Grant Date of such Award and the date of its exercise.
12.11.3 Restricted Stock. If any person owning Restricted Stock receives
new or additional or different shares or securities ("New Securities") in
connection with a corporate transaction described in Section 12.11.1 or a stock
dividend described in Section 12.11.2 as a result of owning such Restricted
Stock, such New Securities shall be subject to all of the conditions and
restrictions applicable to the Restricted Stock with respect to which such New
Securities were issued.
12.11.4 Board Determination. Notwithstanding the foregoing, any adjustments
made pursuant to this Section 12.11 with respect to ISOs shall be made only
after the Board, after consulting with counsel for the Company, determines
whether such adjustments would constitute a "modification" of such ISOs as that
term is defined in Section 424 of the Code, or would cause any adverse tax
consequences for the holders of such ISOs. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
12.11.5 Fractional Shares. No fractional shares shall be issued under the
Plan. Any fractional shares which, but for this Section, would have been issued
shall be deemed to have been issued and immediately sold to the Company for
their fair market value, and the Participant shall receive from the Company cash
in lieu of such fractional shares.
12.11.6 Other Distributions. The Board may adjust the number of Shares
subject to outstanding Awards and the exercise price and the terms of
outstanding Awards to take into consideration material changes in accounting
practices or principles, extraordinary dividends, consolidations or mergers
(except those described in Section 12.4), acquisitions or dispositions of stock
or property or any other event if it is determined by the Board that such
adjustment is appropriate to avoid distortion in the operation of the Plan,
provided that no such adjustment shall be made in the case of an ISO, without
the consent of the Participant, if it would constitute a modification, extension
or renewal of the option within the meaning of Section 424(h) of the Code.
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<PAGE>
12.11.7 Further Adjustment. Upon the happening of any of the events
described in Sections 12.11.1 or 12.11.2, the class and aggregate number of
Shares set forth in Sections 5.1 and 5.3 hereof that are subject to Awards which
previously have been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events described in such Sections. The
Board shall determine the specific adjustments to be made under this Section
12.11.7.
Section 13. Amendment and Termination
13.1 Amendment, Suspension, Termination of the Plan. The Board may
modify, amend, suspend or terminate the Plan in whole or in part at any time;
provided, however, that no modification, amendment, suspension or termination of
the Plan shall be made without shareholder approval if such approval is
necessary to comply with any applicable tax or regulatory requirement; provided,
further, that such modification, amendment, suspension or termination shall not,
without a Participant's consent, affect adversely the rights of such Participant
with respect to any Award previously made.
13.2 Amendment, Suspension, Termination of an Award. The Board may
modify, amend, or terminate any outstanding Award, including, without
limitation, substituting therefor another Award of the same or a different type,
changing the date of exercise or realization and converting an ISO to an NQO;
provided, however, that the Participant's consent to such action shall be
required unless the Board determines that the action, taking into account any
related action, would not materially and adversely affect the Participant.
Section 14. Legal Construction
14.1 Captions. The captions provided herein are included solely for
convenience of reference and shall not affect the meaning of any of the
provisions of the Plan or serve as a basis for interpretation or construction of
the Plan.
14.2 Severability. In the event any provision of the Plan shall be held
invalid or illegal for any reason, the illegality or invalidity shall not affect
the remaining provisions of the Plan, and the Plan shall be construed and
enforced as if the illegal or invalid provision had not been included.
14.3 Governing Law. The Plan and all rights hereunder shall be
construed in accordance with and governed by the internal laws of the State of
Delaware.
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EXHIBIT 4.2
CAREMATRIX CORPORATION
1991 COMBINATION STOCK OPTION PLAN
(as amended through October 14, 1996)
Section I. Purpose of the Plan.
-------------------
The purposes of the CareMatrix Corporation (f/k/a The Standish Care
Company) 1991 Combination Stock Option Plan (the "1991 Plan") are (i) to provide
long-term incentives and rewards to those key employees (the "Employee
Participants") of CareMatrix Corporation (the "Corporation") and its
subsidiaries (if any), and any other persons (the "Non-employee Participants")
who are in a position to contribute to the long-term success and growth of the
Corporation and its subsidiaries, (ii) to assist the Corporation in retaining
and attracting executives and key employees with requisite experience and
ability, and (iii) to associate more closely the interests of such executives
and key employees with those of the Corporation's stockholders.
Section II. Definitions.
-----------
Code. The "Code" is the Internal Revenue Code of 1986, as it may be
amended from time to time.
Common Stock. "Common Stock" is the $0.05 par value common stock of the
Corporation.
Committee. "Committee" is defined in Section III, paragraph (a).
Corporation. "Corporation" is defined in Section I of this 1991 Plan.
Corporation ISOs. "Corporation ISOs" are all stock options (including
1991 Plan ISOs) which (i) are Incentive Stock Options and (ii) are granted on or
after the Effective Date of this 1991 Plan under any plans (including this 1991
Plan) of the Corporation, a Parent Corporation and/or a Subsidiary Corporation.
Employee Participants. "Employee Participants" is defined in Section I.
Fair Market Value. The "Fair Market Value" of any property is the value
of the property as reasonably determined by the Committee.
Incentive Stock Option. An "Incentive Stock Option" is a stock option
which is treated as an incentive stock option under Section 422A of the Code.
1991 Plan. "1991 Plan" is defined in Section I.
1991 Plan ISOs. "1991 Plan ISOs" are Stock Options which are Incentive
Stock Options.
<PAGE>
Non-employee Participants. "Non-employee Participants" is defined in
Section I.
Non-qualified Option. A "Non-qualified Option" is a Stock Option which
does not qualify as an Incentive Stock Option or for which the Committee
provides, in the terms of such option and at the time such option is granted,
that the option shall not be treated as an Incentive Stock Option.
Parent Corporation. "Parent Corporation" has the meaning provided in
Section 425(e) of the Code.
Participants. "Participants" are all persons who are either Employee
Participants or Non- employee Participants.
Permanent and Total Disability. "Permanent and Total Disability" has
the meaning provided in Section 22(e)(3) of the Code.
Stock Options. Stock Options are rights granted pursuant to this 1991
Plan to purchase shares of Common Stock at a fixed price.
Subsidiary Corporation. "Subsidiary Corporation" has the meaning
provided in Section 425(f) of the Code.
Ten Percent Stockholder. "Ten Percent Stockholder" means, with respect
to a 1991 Plan ISO, any individual who directly or indirectly owns stock
possessing more than 10% of the total combined voting power of all classes of
stock of the Corporation or any Parent Corporation or any Subsidiary Corporation
at the time such 1991 Plan ISO is granted.
Section III. Administration.
--------------
(a) The Committee. The Plan shall be administered by the Board
of Directors of the Corporation, or if the Board so determines, by a
Compensation Committee, consisting of at least two (2) persons, none of whom
shall be eligible to participate in the Plan or in any similar plan offered by
the Company, such administering body to be referred to as the "Committee." The
Committee shall serve at the pleasure of the Board of Directors, which may from
time to time, and in its sole discretion, discharge any member, appoint
additional new members in substitution for those previously appointed and/or
fill vacancies however caused. A majority of the Committee shall constitute a
quorum and the acts of a majority of the members present at any meeting at which
a quorum is present shall be deemed the action of the Committee.
(b) Authority and Discretion of the Committee. Subject to the
express provisions of this 1991 Plan and provided that all actions taken shall
be consistent with the purposes of this 1991 Plan, and subject to ratification
by the Board Of Directors only if required
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<PAGE>
by applicable law, the Committee shall have full and complete authority and the
sole discretion to: (i) determine those persons who shall constitute Employee
Participants and Non-employee Participants; (ii) select the Participants to whom
Stock Options shall be granted under this 1991 Plan; (iii) determine the size
and the form of the Stock Options, if any, to be granted to any Participant;
(iv) determine the time or times such Stock Options shall be granted including
the grant of Stock Options in connection with other awards made, or compensation
paid, to the Participant; (v) establish the terms and conditions upon which such
Stock Options may be exercised and/or transferred, including the exercise of
Stock Options in connection with other awards made, or compensation paid, to the
Participant; (vi) make or alter any restrictions and conditions upon such Stock
Options and the Stock received on exercise thereof, including, but not limited
to, providing for limitations on the Participant's right to keep any Stock
received on termination of employment; and (vii) adopt such rules and
regulations, establish, define and/or interpret these and any other terms and
conditions, and make all determinations (which may be on a case-by-case basis)
deemed necessary or desirable for the administration of this 1991 Plan. Michael
J. Doyle, so long as he is employed by the Corporation, shall have the authority
to recommend Participants in the 1991 Plan to the Committee. Notwithstanding any
provision of this 1991 Plan to the contrary, only Employee Participants shall be
eligible to receive 1991 Plan ISOs.
(c) Applicable Law. This 1991 Plan, and all Stock Options
shall be governed by the law of the State of Delaware.
Section IV. Terms of Stock Options.
----------------------
(a) Agreements. Stock Options shall be evidenced by a written
agreement between the Corporation and the Participant awarded the Stock Option.
Said agreement shall be in such form, and contain such terms and conditions (not
inconsistent with this 1991 Plan) as the Committee may determine. If the Stock
Option described therein is not intended to be an Incentive Stock Option, such
agreement shall include the following, or a similar statement: "This stock
option is not intended to be an Incentive Stock Option, as that term is
described in Section 422A of the Internal Revenue Code of 1986, as amended."
(b) Term. Stock Options shall be for such periods as may be
determined by the Committee, provided that in the case of 1991 Plan ISOs, the
term of any such 1991 Plan ISO shall not extend beyond three months after the
time the Participant ceases to be an employee of the Corporation.
Notwithstanding the foregoing, the Committee may provide in a 1991 Plan ISO that
in the event of the Permanent and Total Disability or death of the Participant,
the 1991 Plan ISO may be exercised by the Participant or his estate (if
applicable) for a period of up to one year after the date of such Permanent and
Total Disability or Death. In no event may a 1991 Plan ISO be exercisable
(including provisions, if any, for exercise in installments) subsequent to ten
years after the date of grant, or, in the case of 1991 Plan ISOs granted to Ten
percent Stockholders, more than five years after the date of grant.
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<PAGE>
(c) Purchase Price. The purchase price of shares purchased
pursuant to any Stock Option shall be determined by the Committee, and shall be
paid by the employee in full upon exercise, (a) in cash, (b) by delivery of
shares of Common Stock (valued at their Fair Market Value on the date of such
exercise), (c) any other property (valued at its Fair Market Value on the date
of such exercise), or (d) any combination of cash, stock and other property,
each of the foregoing only as the Committee, in its sole discretion, may permit.
In no event will the purchase price of Common Stock subject to a 1991 Plan ISO
be less than the Fair Market Value of the Common Stock on the date of the
issuance of the 1991 Plan ISO, provided that in the case of 1991 Plan ISOs
granted to Ten Percent Stockholders, the purchase price shall not be less than
110% of the Fair Market Value of the Common Stock on the date of issuance of the
1991 Plan ISO. In addition in no event will the purchase price of Common Stock
subject to a Non-qualified Option be less than one-half of the Fair Market Value
of the Common Stock. Furthermore, in no event shall the purchase price of any
Option be less than the par value of the Common Stock.
(d) Further Restrictions as to Incentive Stock Options. To the
extent that the aggregate Fair Market Value of Common Stock with respect to
which Corporation ISOs (determined without regard to this section) are
exercisable for the first time by any Employee Participant during any calendar
year exceeds $100,000, such Corporation ISOs shall be treated as options which
are not Incentive Stock Options.
(e) Restrictions. At the discretion of the Committee, the
Common Stock issued pursuant to the Stock Options granted hereunder may be
subject to restrictions on vesting or transferability.
(f) Withholding of Taxes. Pursuant to applicable Federal,
state, local or foreign laws, the Corporation may be required to collect income
or other taxes upon the grant of a Stock Option to, or exercise of a Stock
Option by, a holder. The Corporation may require, as a condition to the exercise
of a Stock Option, or demand, at such other time as it may consider appropriate,
that the Employee pay the Corporation the amount of any taxes which the
Corporation may determine is required to be withheld or collected, and the
Employee shall comply with the requirement or demand of the Corporation.
(g) Securities Law Compliance. Upon exercise (or partial
exercise) of a Stock Option, the Employee shall make such representations and
furnish such information as may, in the opinion of counsel for the Corporation,
be appropriate to permit the Corporation to issue or transfer Stock in
compliance with the provisions of applicable federal or state securities laws.
The Corporation, in its discretion, may postpone the issuance and delivery of
Stock upon any exercise of this Option until completion of such registration or
other qualification of such shares under any federal or state laws, or stock
exchange listing, as the Corporation may consider appropriate. The Corporation
may require that prior to the issuance or transfer of Stock upon exercise of a
Stock Option, the Employee enter into a written agreement to comply with any
restrictions on subsequent disposition that the Corporation deems necessary or
advisable under
-4-
<PAGE>
any applicable federal and state securities laws. Certificates of Stock issued
hereunder may be legended to reflect such restrictions.
(h) Right to Stock Option. No employee of the Corporation or
any other person shall have any claim or right to be a participant in this 1991
Plan or to be granted a Stock Option hereunder. Neither this 1991 Plan nor any
action taken hereunder shall be construed as giving any person any right to be
retained in the employ of the Corporation. Nothing contained hereunder shall be
construed as giving any person any equity or interest of any kind in any assets
of the Corporation or creating a trust of any kind or a fiduciary relationship
of any kind between the Corporation and any such person. As to any claim for any
unpaid amounts under this 1991 Plan, any person having a claim for payments
shall be an unsecured creditor.
(i) Indemnity. Neither the Board of Directors nor the
Committee, nor any members of either, nor any employees of the Corporation or
any subsidiary, shall be liable for any act, omission, interpretation,
construction or determination made in good faith in connection with their
responsibilities with respect to this 1991 Plan, and the Corporation hereby
agrees to indemnify the members of the Board of Directors, the members of the
Committee, and the employees of the Corporation and its subsidiaries in respect
of any claim, loss, damage, or expense (including counsel fees) arising from any
such act, omission, interpretation, construction or determination to the full
extent permitted by law.
(j) Participation by Foreigners. Without amending this 1991
Plan, except to the extent required by the Code in the case of Incentive Stock
Options, the Committee may modify grants made to participants who are foreign
nationals or employed outside the United States so as to recognize differences
in local law, tax policy, or custom.
Section V. Amendment and Termination; Adjustments Upon Changes in Stock.
------------------------------------------------------------
The Board of Directors of the Corporation may at any time, and from
time to time, amend, suspend or terminate this 1991 Plan in whole or in part;
provided, however, that the Board of Directors may not materially increase the
benefits accruing to Participants, increase the number of shares of Common Stock
reserved for purposes of this 1991 Plan, extend the term of this 1991 Plan or
materially modify the requirements to be a Participant in this 1991 Plan without
further approval by the affirmative vote of at least a majority of the holders
of the outstanding shares of Common Stock. Except as provided herein, no
amendment, suspension or termination of this 1991 Plan may affect the rights of
a Participant to whom a Stock Option has been granted without such Participant's
consent. The Committee is specifically authorized to convert the unexercised
portion of any 1991 Plan ISO granted to an Employee Participant to a
Non-qualified Option at any time prior to the exercise, in full, of such 1991
Plan ISO. If there shall be any change in the Common Stock or to any Stock
Option granted under this 1991 Plan through merger, consolidation,
reorganization, recapitalization, stock dividend, stock split or other change in
the corporate structure of the Corporation, appropriate adjustments may be made
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<PAGE>
by the Board of Directors of the Corporation (or if the Corporation is not the
surviving corporation in any such transaction, the Board of Directors of the
surviving corporation) in the aggregate number and kind of shares subject to
this 1991 Plan, and the number and kind of shares and the price per share
subject to outstanding options, provided that such adjustment does not affect
the qualification of any 1991 Plan ISO as an Incentive Stock Option. In
connection with the foregoing, the Board of Directors may issue new Stock
Options in exchange for outstanding Stock Options.
Section VI. Shares of Stock Subject to the Plan.
-----------------------------------
The number of shares of Common Stock that may be the subject of awards
under this 1991 Plan shall not exceed 400,000 shares. Shares to be delivered
under this 1991 Plan may be either authorized but unissued shares of Common
Stock or treasury shares. Any shares subject to an option hereunder which for
any reason expires unexercised, shares reacquired by the Corporation because
restrictions do not lapse, shares returned because payment is made hereunder in
stock of equivalent value rather than in cash, and/or shares reacquired from a
recipient for any other reason shall, at such time, no longer count towards the
aggregate number of shares which have been the subject of Stock Options issued
hereunder, and such number of shares shall be subject to further awards under
this 1991 Plan, provided the total number of shares then eligible for award
under this 1991 Plan may not exceed the total specified in the first sentence of
this Section VI.
Section VII. Effective Date and Term of this Plan.
------------------------------------
Provided the stockholders of the Corporation approve this 1991 Plan,
the effective date of this 1991 Plan is October 1, 1991 (the "Effective Date")
and awards under this 1991 Plan may be made for a period of ten years commencing
on the Effective Date. The period during which a Stock Option may be exercised
may extend beyond that time as provided herein.
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EXHIBIT 4.3
CAREMATRIX CORPORATION
1995 Non-qualified Stock Option Plan for Non-employee Directors
(as amended through October 14, 1996)
The 1995 Non-Qualified Stock Option Plan for Non-Employee Directors
(the "Plan") is established to attract, retain and compensate for service highly
qualified individuals who are not current or former employees of CareMatrix
Corporation, a Delaware corporation (the "Company") as members of the Board of
Directors and to enable them to increase their ownership in the Company's Common
Stock, $.05 par value per share (the "Common Stock"). The Plan will be
beneficial to the Company and its stockholders since it will allow these
directors to have a greater personal financial stake in the Company through the
ownership of Company stock, in addition to aligning more closely their common
interest with stockholders in increasing the value of the Common Stock over the
long term.
1. Eligibility
All members of the Company's Board of Directors who are not current or
former employees of the Company or any of its subsidiaries ("Non-Employee
Directors") are eligible to participate in this Plan.
2. Options
Only a nonqualified stock option ("NQSO") may be gratned under this
Plan.
3. Shares Available
(a) Number of Shares Available: There are hereby reserved for issuance
under the Plan 36,000 shares of Common Stock, which may be authorized but
unissued shares, treasury shares, or shares purchased on the open market.
(b) Recapitalization Adjustment: In the event of a reorganization,
recapitalization, stock split, stock dividend, combination of shares, merger,
consolidation, rights offering, or any other change in the corporate structure
or shares of the Company, adjustments in the number and kind of shares
authorized by this Plan, in the number and kind of shares covered by, and in the
option price of, outstanding NQSO's under this Plan shall be made if, and in the
same manner as, such adjustments are made to NQSO's issued under the Company's
then current combination or other incentive stock option plan.
4. Annual Grant of Nonqualified Stock Options
Each year on the first Friday following the Company's Annual Meeting of
Stockholders, each individual elected, reelected or continuing as a Non-Employee
Director shall automatically receive a NQSO covering 1,200 shares of Common
Stock. Notwithstanding the foregoing, if, on the first Friday, the legal counsel
("Counsel") to the Company determines, in his/her sole
<PAGE>
discretion, that the Company is in possession of material, undisclosed
information about the Company, then the annual grant of NQSO's to Non-Employee
Directors shall be suspended until the second day after public dissemination of
such information and the price, exercise date and option period shall then be
determined by reference to such later date. If Common Stock is not traded on the
National Association of Securities Dealers Automated Quotation ("NASDAQ")
Small-Cap System on any date a grant would otherwise be awarded, then the grant
shall be made the next day thereafter on which Common Stock is so traded.
5. Option Price
The price of the NQSO shall be either (a) the simple average of the
high and low prices at which the Common Stock traded on the date of the grant,
as quoted on NASDAQ on that date, or (2) the price of the last sale of Common
Stock on that date as quoted by NASDAQ, whichever is higher.
6. Option Period
One-third of the shares of Common Stock underlying each NQSO granted
under this Plan shall become exercisable on each of the following: the date of
grant, the Friday prior to the first Annual Meeting of Stockholders following
the date of grant, and the Friday prior to the second Annual Meeting of
Stockholders following the date of grant. The foregoing exercise dates shall
apply to all NQSO's granted under the Plan. A NQSO granted under this Plan shall
expire ten years after date of grant ('Option Period").
7. Payment
The NQSO price shall be paid in cash in U.S. dollars at the time the
NQSO is exercised.
8. Cessation of Service
Upon cessation of service as a Non-Employee Director (for reasons other
than death), only those NQSO's immediately exercisable at the date of cessation
of service shall be exercisable by the grantee. Such NQSO's must be exercised
within three months of cessation of service (but in no event after the
expiration of the Option Period) or they shall be forfeited.
9. Death
Upon the death of a Non-Employee Director, only those NQSO's which were
exercisable on the date of death shall be exercisable by his/her legal
representatives or heirs. Such NQSO's must be exercised within three months from
the date of death (but in no event after the expiration of the Option Period) or
they shall be forfeited.
10. Administration and Amendment of the Plan
This Plan shall be administered by the Board of Directors of the
Company. This Plan may be terminated or amended by the Board of Directors as
they deem advisable. However, an amendment revising the price, date of
exercisability, option period of, or amount of shares under the NQSO shall not
be made more frequently than every six months unless necessary to
<PAGE>
comply with the Internal Revenue Code of 1986, as amended, or with the Employee
Retirement Income Security Act of 1974, as amended. No amendment may revoke or
alter in a manner unfavorable to the grantees any NQSO's then outstanding, nor
may the Board amend this Plan without stockholder approval where the absence of
such approval would cause the Plan to fail to comply with Rule 16b-3 under the
Securities Exchange Act of 1934 (the "Act"), or any other requirement of
applicable law or regulation. A NQSO may not be granted under this Plan after
April 30, 2005 but NQSO's granted prior to that date shall continue to become
exercisable and may be exercised according to their terms.
11. Nontransferability
No NQSO granted under this Plan is transferable other than by will or
the laws of descent and distribution. During the grantee's lifetime, a NQSO may
only be exercised by the grantee or the grantee's guardian or legal
representative.
12. Compliance with SEC Regulations
It is the Company's intent that the Plan comply in all respects with
Rule 16b-3 of the Act and any regulations promulgated thereunder. If any
provision of this Plan is later found not be in compliance with the Rule, the
provision shall be deemed null and void. All grants and exercises of NQSO's
under this Plan shall be executed in accordance with the requirements of Section
16 of the Act, as amended, and any regulations promulgated thereunder.
13. Miscellaneous
Except as provided in this Plan, no Non-Employee Director shall have
any claim or right to be granted a NQSO under this Plan. Neither the Plan nor
any action thereunder shall be construed as giving any director any right to be
retained in the service of the Company.
14. Effective Date
This Plan shall be effective May 1, 1995, subject to stockholder
approval.
Exhibit 5.1
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NUTTER, McCLENNEN & FISH, LLP
ATTORNEYS AT LAW
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110-2699
TELEPHONE: 617-439-2000 FACSIMILE: 617-973-9748
CAPE COD OFFICE DIRECT DIAL NUMBER
HYANNIS, MASSACHUSETTS
December 11, 1996
CareMatrix Corporation
197 First Avenue
Needham, Massachusetts 02194
Gentlemen/Ladies:
Reference is made to the registration statement on Form S-8 (the
"Registration Statement") which CareMatrix Corporation (the "Company") is filing
concurrently herewith with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Securities Act"), with respect to (i)
an aggregate of 400,000 shares of the Company's Common Stock, $0.05 par value
(the "Common Stock") issuable pursuant to the Company's 1991 Combination Stock
Option Plan, as amended and restated to date (the "1991 Plan"), and an aggregate
of 36,000 shares of Common Stock issuable pursuant to the Company's 1995
Non-Qualified Stock Option Plan (the "1995 Plan"), (ii) an aggregate of
1,200,000 shares of Common Stock, issuable pursuant to the Company's 1996 Equity
Incentive Plan (the "1996 Plan"), and (ii) an indeterminate number of shares of
such Common Stock which may be issued or become issuable under the 1991 Plan,
the 1995 Plan and the 1996 Plan by reason of stock dividends, stock splits or
other recapitalizations executed hereafter.
We acted as legal counsel for the Company in connection with the
adoption of the 1996 Plan, are familiar with the Company's Certificate of
Incorporation, as amended and restated to date, and By-Laws as amended to date,
and have examined such other documents as we deemed necessary for this opinion.
Based upon the foregoing, we are of the opinion that:
1. When issued and paid for in compliance with the terms of the
1996 Plan, the 1,200,000 shares of Common Stock referred to above will be duly
and validly issued, fully paid and non-assessable; and
2. The additional shares of Common Stock which may become
issuable under the 1996 Plan by reason of stock dividends, stock splits or other
recapitalizations hereafter executed, if and when issued in accordance with the
terms of the Plans and upon compliance with the applicable provisions of law and
of the Company's Certificate of Incorporation, as amended and restated to date,
and By-Laws, will be duly and validly issued, fully paid and non-assessable.
We understand that this opinion letter is to be used in
connection with the Registration Statement and hereby consent to the filing of
this opinion letter with and as a part of the Registration Statement and of any
amendments thereto. It is understood that this opinion letter is to be used in
connection with the offer and sale of the aforesaid shares only while the
Registration Statement, as it may be amended from time to time as contemplated
by Section 10(a)(3) of the Securities Act, is effective under the Securities
Act.
Very truly yours,
/s/ Nutter, McClennen & Fish, LLP
Nutter, McClennen & Fish, LLP
Exhibit 5.2
-----------
ROBINSON & COLE
Boston (bullet) Hartford (bullet) Stamford (bullet) New York
Law Offices
Founded in 1845
One Boston Place
Boston, MA 02108 4404
617-557-5900
Fax 617-557-5900
David A. Garbus
617-557-5955
Internet: [email protected]
December 12, 1996
CareMatrix Corporation
197 First Avenue
Needham, MA 02194
Gentlemen/Ladies:
Reference is made to the registration statement on Form S-8 (the
"Registration Statement") which CareMatrix Corporation (the "Company") is filing
concurrently herewith with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, (the "Securities Act"), with respect to (i)
an aggregate of 400,000 shares of the Company's Common Stock, $0.05 par value
(the "Common Stock"), issuable pursuant to the Company's 1991 Combination Stock
Option Plan, as amended and restated to date, and an aggregate of 36,000 shares
of Common Stock, issuable pursuant to the Company's 1995 Non-Qualified Stock
Option Plan (collectively, the "Plans"), (ii) an aggregate of 1,200,000 shares
of Common Stock, issuable pursuant to the Company's 1996 Equity Incentive Plan
(the "Equity Plan"), and (iii) an indeterminate number of shares of such Common
Stock which may be issued or become issuable under the Plans and the Equity Plan
by reason of stock dividends, stock splits or other recapitalizations effected
hereafter.
We acted as legal counsel for the Company in connection with the
adoption of the Plans. In rendering our opinion, we have examined the Plans, the
Company's Certificate of Incorporation, as amended and restated to date, and
By-Laws as amended to date, and such laws, certificates of public officials,
certificates of officers of the Company, instruments, documents, and corporate
records, and have made such other investigations, as we have deemed necessary in
connection with the opinions hereinafter set forth. In such examination we have
assumed (i) the genuineness of all signatures on certificates and documents
other than those of the Company, (ii) the accuracy, completeness and
authenticity of all records and documents submitted to us as originals, and
(iii) the conformity to the original of all documents submitted to us as
certified, conformed or photostatic copies.
<PAGE>
CareMatrix Corporation
December 12, 1996
Page 2
Based upon the foregoing, and subject to the qualifications and
exceptions set forth herein, having regard for legal considerations we deem
relevant, we are of the opinion that:
1. When issued and paid for in compliance with the terms of the
Plans, the aggregate of 436,000 shares of Common Stock referred to above in
respect of the Plans will be duly and validly issued, fully paid and
non-assessable; and
2. The additional shares of Common stock which may become
issuable under the Plans by reason of stock dividends, stock splits or other
recapitalizations hereafter effected, if and when issued in accordance with the
terms of the Plans and upon compliance with the applicable provisions of law and
of the Company's Certificate of Incorporation, as amended and restated to date,
and By-Laws as amended to date, will be duly and validly issued, fully paid and
non-assessable. We express no opinion as to the Equity Plan or the shares of
Common Stock issuable pursuant to such Equity Plan.
We understand that this opinion letter is to be used in
connection with the Registration Statement and hereby consent to the filing of
this opinion letter with and as a part of the Registration Statement and of any
amendments thereto. It is understood that this opinion letter is to be used in
connection with the offer and sale of the aforesaid shares in respect of the
Plans only while the Registration Statement, as it may be amended from time to
time as contemplated by Section 10(a)(3) of the Securities Act, is effective
under the Securities Act.
Very truly yours,
/s/ Robinson & Cole
Robinson & Cole
DAG/lma
