As filed with the Securities and Exchange Commission on August 29, 1997
Registration No. 333-
================================================================================
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)
------------------------
AMENDED AND RESTATED
1991 COMBINATION STOCK OPTION PLAN
(Full title of plan)
------------------------
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,
$.05 par value per share 11,800 Shares $21.00 $247,800
- -----------------------------------------------------------------------------------------------------------------------
Total 11,800 Shares $21.00 $247,800 $75.09
=======================================================================================================================
</TABLE>
(1) This Registration Statement covers the resale of 11,800 shares of Common
Stock previously issued upon the exercise of employee stock options under
the Amended and Restated 1991 Combination Stock Option Plan. In addition,
this Registration Statement also covers an indeterminate number of
additional shares of Common Stock which may be issued as a result of a
stock split, stock dividend, recapitalization or other similar transaction.
(2) Calculated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the registration fee. The
average of the high and low sales prices per share of the Common Stock of
CareMatrix Corporation quoted on the American Stock Exchange on August 28,
1997 was $21.00.
================================================================================
<PAGE>
PROSPECTUS
11,800 Shares
CAREMATRIX CORPORATION
Common Stock
($.05 par value per share)
This Prospectus relates to 11,800 shares of Common Stock, $.05 par
value per share (the "Shares"), of CareMatrix Corporation, a Delaware
corporation (the "Company"), all of which Shares are or owned and may be offered
from time to time by the persons listed herein under, and referred to herein as,
the "Selling Shareholders."
-------------------------------------
The Shares may be offered by the Selling Shareholders from time to time
in transactions on the American Stock Exchange or in privately-negotiated
transactions, at fixed prices which may be changed, at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. Specific information concerning the Selling Shareholders and
their plan of distribution is set forth under "Selling Shareholders" and "Plan
of Distribution."
The Company will not receive any of the proceeds from the sale of the
Shares. The Company has agreed to bear certain expenses in connection with the
registration of the Shares being offered and sold by the Selling Shareholders.
Shares of the Company's Common Stock, $.05 par value per share (the
"Common Stock"), are traded on the American Stock Exchange under the symbol
"CMD." On August 28 1997, the closing price reported for such shares on the
American Stock Exchange was $21.00.
-------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-------------------------------------
The date of this Prospectus is August 29, 1997.
<PAGE>
TABLE OF CONTENTS
Page
----
Available Information ........................................... 2
Documents Incorporated by Reference ............................. 3
The Company ..................................................... 4
Selling Shareholders ............................................ 4
Plan of Distribution ............................................ 4
Experts ......................................................... 5
Legal Matters ................................................... 5
------------------------
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-8 (together
with all amendments and exhibits thereto, the "Registration Statement") under
the Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Shares offered hereby. This Prospectus does not contain all the information
set forth in the Registration Statement, certain portions of which have been
omitted pursuant to the Rules and Regulations of the Securities and Exchange
Commission (the "Commission"). The statements in this Prospectus as to the
contents of any contract or other document of which a copy is filed as an
exhibit either to the Registration Statement or other filings with the
Commission by the Company are qualified in their entirety by reference thereto.
The Company will provide a copy of any documents incorporated by reference
herein (excluding exhibits to the document so incorporated, unless such exhibits
are specifically incorporated by reference into the information that this
Registration Statement incorporates), free of charge, to each person to whom
this Prospectus is delivered, upon written or oral request to James M. Clary,
III, Esquire, Executive Vice President and General Counsel, CareMatrix
Corporation, 197 First Avenue, Needham, Massachusetts 02194, (617) 433-1000.
The Company is subject to the informational requirements of the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports and other information with the
Commission. Such reports, proxy statements and information statements and other
information may be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices located
at Seven World Trade Center, 13th Floor, New York, New York 10048 and the
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material may also be obtained at prescribed rates from the Public
Reference Section of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. Reports, proxy statements and information
statements and other information filed electronically by the Company with the
Commission are available at the Commission's worldwide web site at
http://www.sec.gov. The Company's Common Stock is quoted on the American Stock
Exchange. Reports, proxy statements and information statements and other
information concerning the Company may also be inspected at the American Stock
Exchange at 86 Trinity Place, New York, NY 10006.
-2-
<PAGE>
No person has been authorized to give any information or make any
representation other than those contained in this Prospectus and, if given or
made, such other information or representation must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an offer or
solicitation by anyone in any state in which such offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make such offer or
solicitation.
Neither the delivery of this Prospectus nor any sale of Shares made
pursuant hereto shall, under any circumstances, create any implication that
there has been no change in the affairs of the Company since the date hereof.
DOCUMENTS INCORPORATED BY REFERENCE
The Company hereby incorporates by reference (i) its Annual Report on
Form 10-K for its fiscal year ended December 31, 1996, as amended by the
Company's Annual Report on Form 10-K/A filed with the Commission on April 14,
1997 (including those portions of the Company's definitive proxy statement for
the Annual Meeting of Stockholders held on June 16, 1997 incorporated by
reference therein); (ii) its Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997, as amended by its Quarterly Report on Form 10-Q/A
filed with the Commission on August 12, 1997; (iii) its Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1997; (iv) its Current Report on Form
8-K dated August 5, 1997; (v) its Current Report on Form 8-K dated August 19,
1997; and (vi) the description of the Company's Common Stock contained in its
Registration Statement on Form 8-A dated October 23, 1996, each filed under the
Exchange Act, and any report subsequently filed with the Commission which
updates said description.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date hereof, and prior to the
termination of the sale of Shares covered by this Prospectus, shall be deemed to
be incorporated by reference into this Prospectus from the date of filing such
documents. Any statement contained in this Prospectus, or in a document
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein, or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein, modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy
(without exhibits) of any or all documents incorporated by reference into this
Prospectus. Requests for such copies should be directed to James M. Clary, III,
Esquire, Executive Vice President and General Counsel, CareMatrix Corporation,
197 First Avenue, Needham, Massachusetts 02194, (617) 433-1000.
-3-
<PAGE>
THE COMPANY
The Company is a provider of assisted living services and a developer,
operator and manager of assisted living facilities located primarily in the
Northeast, Mid-Atlantic and Southern regions of the United States. The Company's
primary strategy is to provide a full range of assisted living and related
services across a range of pricing options. The Company's principal executive
offices are located at 197 First Avenue, Needham, Massachusetts 02194 and its
telephone number is (617) 433-1000.
SELLING SHAREHOLDERS
The Shares offered hereby were acquired upon the exercise of stock
options granted pursuant to the Company's Amended and Restated 1991 Combination
Stock Option Plan.
The following table sets forth, with respect to each Selling
Shareholder, (i) his or her name and former position with the Company, (ii) the
number of shares of Common Stock he or she beneficially owned before the
offering, (iii) the number of shares of Common Stock which he or she may offer
pursuant to this Registration Statement, and (iv) the number of shares of Common
Stock he or she will beneficially own following the offering, assuming the sale
of all the Shares. Share ownership information is as of August 28, 1997.
<TABLE>
<CAPTION>
Shares of
Shares of Common Common Stock
Stock Now Shares Which Beneficially Owned
Name Beneficially Owned May Be Offered After the Offering
- ---- ------------------ -------------- ------------------
<S> <C> <C> <C>
Michael J. Brenan 9,000 9,000 -0-
Former Director(1)
Kathleen Feeney Bono 2,800 2,800 -0-
Former Employee(2)
</TABLE>
- ---------------------------
(1) Mr. Brenan served as a Director of the Company from July 1995 to
August 1996.
(2) Ms. Bono served as the Company's Accounting Manager from January 1991 to
September 1996.
The Company will not receive any portion of the sales price of any
Shares sold under this Prospectus from time to time by the Selling Shareholders.
PLAN OF DISTRIBUTION
The Selling Shareholders may sell Shares from time to time in
transactions on the American Stock Exchange or in privately-negotiated
transactions, at fixed prices which may be changed, at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Selling Shareholders may effect such transactions by
selling the Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the Selling
-4-
<PAGE>
Shareholders or the purchasers of the Shares for whom such broker-dealers may
act as agent or to whom they sell as principal, or both (which compensation to a
particular broker-dealer might be in excess of customary commissions).
The Selling Shareholders and any broker-dealers who act in connection
with the sale of Shares hereunder may be deemed to be "underwriters" as that
term is defined in the Securities Act, and any commissions received by them and
profit on any resale of the shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act.
EXPERTS
The consolidated financial statements of the Company as of December 31,
1996 and for the year then ended, and the combined financial statements of the
Company as of December 31, 1995 and for the year ended December 31, 1995 and the
period from June 24, 1994 (inception) to December 31, 1994, incorporated by
reference in this Prospectus, have been incorporated herein in reliance on the
report of Coopers & Lybrand, L.L.P., independent accountants, given on the
authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters with respect to the legality of the Shares being
offered under this Prospectus will be passed upon for the Company by Nutter,
McClennen & Fish, LLP, One International Place, Boston, Massachusetts 02110.
Michael J. Bohnen, Esquire, a partner of Nutter, McClennen & Fish, LLP, is an
Assistant Secretary of the Company.
-5-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Statement Pursuant to Instruction E of Form S-8
On December 13, 1996, CareMatrix Corporation, a Delaware Corporation
(the "Company") filed with the Securities and Exchange Commission (the
"Commission") a Registration Statement on Form S-8, file no. 333-18103 (the
"Registration Statement on Form S-8"), concerning the registration of shares of
the Company's common stock, par value $.05 per share, issuable pursuant to the
Company's 1996 Equity Incentive Plan, Restated 1991 Combination Stock Option
Plan and 1995 Non-Qualified Stock Option Plan. The contents of the Registration
Statement on Form S-8 are hereby incorporated by reference herein.
Item 3. Incorporation of Documents by Reference.
----------------------------------------
In addition to the foregoing, the Company hereby incorporates by
reference in this Registration Statement the following documents and information
heretofore filed with the Commission:
(a) The Company's Report on Form 10-K for the fiscal year ended
December 31, 1996, filed with the Commission on March 28, 1997;
(b) The Company's Report on Form 10-K/A for the fiscal year ended
December 31, 1996, filed with the Commission on April 14, 1997;
(c) The Company's Report on Form 10-Q for the quarter ended March 31,
1997, filed with the Commission on May 14, 1997;
(d) The Company's Report on Form 10-Q/A for the quarter ended March 31,
1997, filed with the Commission on August 12, 1997;
(e) The Company's Current Report on Form 8-K filed with the Commission
on August 5, 1997;
(f) The Company's Current Report on Form 8-K filed with the Commission
on August 19, 1997; and
(g) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated October 23, 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
-6-
<PAGE>
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 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 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. Michael J. Bohnen, Esquire, a
partner of Nutter, McClennen & Fish, LLP, is an Assistant Secretary of the
Company.
Item 7. Exemption from Registration Claimed
-----------------------------------
The shares of Common Stock offered hereunder were issued to the holders
of such shares pursuant to the Amended and Restated 1991 Combination Stock
Option Plan and, therefore, were issued relying upon the exemption from
registration provided under Section 4(2) of the Securities Act of 1933.
Item 8. Exhibits
--------
Exhibit Title
- ------- -----
Exhibit 5 Opinion of Nutter, McClennen & Fish, LLP
Exhibit 10 Amended and Restated 1991 Combination Stock Option Plan
Exhibit 23.1 Consent of Nutter, McClennen & Fish, LLP (contained in Exhibit
5)
Exhibit 23.2 Consent of Coopers & Lybrand, L.L.P.
Exhibit 24 Power of Attorney (contained in Part II of the Registration
Statement)
-7-
<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
28th day of August 1997.
CAREMATRIX CORPORATION
By: /s/ Robert M. Kaufman
---------------------------
Robert M. Kaufman
Chief Executive Officer
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 singly, 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 and in his 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>
/s/ Abraham D. Gosman Chairman of the Board August 28, 1997
- --------------------------
Abraham D. Gosman
/s/ Robert M. Kaufman Chief Executive Officer, August 28, 1997
- -------------------------- Treasurer, Principle
Robert M. Kaufman Executive Officer and
Principal Accounting Officer
<PAGE>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Andrew D. Gosman President and Director August 28, 1997
- --------------------------
Andrew D. Gosman
/s/ Michael M. Gosman Vice Chairman, Executive August 28, 1997
- -------------------------- Vice President and
Michael M. Gosman Director
- -------------------------- Director
Donald J. Amaral
/s/ H. Loy Anderson, Jr. Director August 5, 1997
- --------------------------
H. Loy Anderson, Jr.
/s/ Rev. Bedros Baharian Director August 15, 1997
- --------------------------
Rev. Bedros Baharian
/s/ Robert Cataldo Director August 5, 1997
- --------------------------
Robert Cataldo
/s/ Stephen E. Ronai Director August 5, 1997
- --------------------------
Stephen E. Ronai
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit Title
- ------- -----
Exhibit 5 Opinion of Nutter, McClennen & Fish, LLP
Exhibit 10 Amended and Restated 1991 Combination Stock Option Plan
Exhibit 23.1 Consent of Nutter, McClennen & Fish, LLP (contained in
Exhibit 5)
Exhibit 23.2 Consent of Coopers & Lybrand, L.L.P.
Exhibit 24 Power of Attorney (contained in Part II of the Registration
Statement)
Exhibit 5
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
August 28, 1997
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 the
resale of an aggregate of 11,800 shares (the "Shares") of the Company's Common
Stock, $0.05 par value (the "Common Stock") issued pursuant to the Company's
Amended and Restated 1991 Combination Stock Option Plan, as amended and restated
to date (the "1991 Plan").
We acted as legal counsel for the Company in connection with the
adoption of the June 16, 1997 amendment and restatement of the 1991 Plan and 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:
The Shares, when sold pursuant to the Registration Statement, will,
when sold, be legally 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
MJB/ASG/
EXHIBIT 10
CAREMATRIX CORPORATION
AMENDED AND RESTATED
1991 COMBINATION STOCK OPTION PLAN
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 422 of the Code.
1991 Plan. "1991 Plan" is defined in Section I.
<PAGE>
1991 Plan ISOs. "1991 Plan ISOs" are Stock Options which are Incentive
Stock Options.
Non-employee Directors. "Non-employee directors" has the meaning
provided in Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as
amended.
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.
Outside Directors. "Outside directors" has the meaning provided in
Treasury Regulations Sec. 1.162-27(e)(3).
Parent Corporation. "Parent Corporation" has the meaning provided in
Section 424(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 424(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, such administering body to be referred to as the
"Committee" consisting solely of two or more Outside Directors who are also
Non-employee Directors. 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
-2-
<PAGE>
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 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
-3-
<PAGE>
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.
(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.
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<PAGE>
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 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
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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 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. In no event shall any
participants receive in any calendar year stock options for more than 120,000
shares of Common Stock. 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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Coopers | Coopers & Lybrand L.L.P.
& Lybrand |
| a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
CareMatrix Corporation on Form S-8 of our report dated February 7, 1997, on our
audits of the consolidated financial statements of CareMatrix Corporation as of
December 31, 1996 and for the year then ended, and the combined financial
statements of CareMatrix Corporation as of December 31, 1995 and for the year
ended December 31, 1995 and the period from June 24, 1994 (inception) to
December 31, 1994. We also consent to the reference to our firm under the
caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
August 29, 1997
