<PAGE> 1
As filed with the Securities and Exchange Commission on August 7, 1996
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-----------------------
LIVING CENTERS OF AMERICA, INC.
(Exact name of Registrant as specified in its charter)
Delaware 74-2012902
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
15415 Katy Freeway, Suite 800
Houston, Texas 77094
(713) 578-4700
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
LIVING CENTERS OF AMERICA, INC.
1992 STOCK OPTION PLAN
(Full Title of the Plan)
-----------------------
Susan Thomas Whittle
Vice President, General Counsel and Secretary
15415 Katy Freeway, Suite 800
Houston, Texas 77094
(713) 578-4700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
with a copy to:
Jeff C. Dodd, Esq.
Mayor, Day, Caldwell & Keeton, L.L.P.
700 Louisiana, Suite 1900
Houston, Texas 77002-2778
(713) 225-7000
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=========================================================================================================================
Title of Each Class Amount Proposed Maximum Proposed Maximum Amount
of Securities to be to be Offering Price Aggregate of
Registered Registered(1) per Share (1) Offering Price(1) Registration Fee
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share 600,000 shares $24.50 $14,700,000 $5,069
=========================================================================================================================
</TABLE>
(1) Estimated pursuant to Rules 457(c) and (h) under the Securities Act of
1933, as amended, solely for purposes of computing the registration fee
and based upon the average of the high and low sales prices reported on
the New York Stock Exchange Composite tape on July 31, 1996.
<PAGE> 2
Pursuant to General Instruction E of Form S-8, the Registrant hereby
incorporates herein by reference the contents of Registration Statement No.
33-89320; provided, however, that certain items of Part II of such earlier
registration statement are hereby amended and restated in their entirety below
to include information required herein that was not contained in such earlier
registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which the registrant, Living Centers of
America, Inc. (the "Company"), has filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act") (File No. 2-44726), are incorporated herein by
reference and shall be deemed to be a part hereof:
(1) The Company's Annual Report on Form 10-K for the year
ended September 30, 1995, as amended on Form 10-K/A filed with the
Commission on February 5, 1996;
(2) The Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1995;
(3) The Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996;
(4) The Company's Current Report on Form 8-K/A, Amendment
No. 1, dated June 23, 1995 and filed with the Commission on October
25, 1995;
(5) The Company's Current Report on Form 8-K/A, Amendment
No. 2, dated July 31, 1995 and filed with the Commission on October
25, 1995;
(6) The description of the Company's common stock, par
value $0.01 per share (the "Common Stock") contained in the Company's
Registration Statement on Form 8-A dated December 23, 1991; and
(7) The description of the preferred stock purchase
rights associated with the Common Stock contained in the Company's
Registration Statement on Form 8-A dated November 22, 1994.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of
filing of such documents. Any statement contained herein or in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document which also is incorporated by reference
herein) modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof except as so
modified or superseded.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus is delivered, upon the written or oral
request of such person, a copy of any or all of the documents which are
incorporated by reference herein, other than exhibits to such documents (unless
such exhibits are specifically incorporated by reference into such documents).
Requests should be directed to Susan Thomas Whittle, Vice President, General
Counsel and Secretary, at the Company's principal executive offices located at
15415 Katy Freeway, Suite 800, Houston, Texas 77094.
<PAGE> 3
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with Common Stock offer pursuant
to the 1992 Stock Option Plan, as amended (the "Plan"), are being passed upon
for the Company by Susan Thomas Whittle, General Counsel of the Company. Ms.
Whittle, who is also Vice President and Secretary of the Company, beneficially
owned, as of June 30, 1996, 9,631 shares of Common Stock, including 8,631
shares that could be acquired within 60 days upon the exercise of stock
options.
ITEM 8. EXHIBITS.
EXHIBIT NO.
-----------
4.1 Restated Certificate of Incorporation of Living Centers of
America, Inc., as amended.
*4.2 By-laws of Living Centers of America, Inc. (filed as
Exhibit 3.2 to the Company's Registration Statement on Form
S-1, Registration No. 33-44726, and incorporated herein by
reference).
*4.3 Certificate of Designations of Series A Junior
Participating Preferred Stock of Living Centers of
America, Inc. (filed as Exhibit 4.1 to the Company's Form
10-Q for the quarter ended December 31, 1994, Commission
File Number 33-44726, and incorporated herein by reference).
*4.4 Rights Agreement dated as of November 17, 1994 between
Living Centers of America, Inc. and Chemical Bank, as Rights
Agent, specifying the terms of the rights to purchase the
Company's Series A Preferred Stock, and as exhibits
thereto (filed as Exhibit 1 to the Company's
Registration Statement on Form 8-K dated November 17, 1994
and incorporated herein by reference).
5 Opinion of Susan Thomas Whittle, General Counsel of the
Company.
10.1 Living Centers of America, Inc. 1992 Stock Option Plan,
as amended and restated.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Susan Thomas Whittle (included in Exhibit 5).
24.1 Power of Attorney of Edward L. Kuntz.
24.2 Power of Attorney of Leroy D. Williams.
24.3 Power of Attorney of Roger J. Bulger.
24.4 Power of Attorney of Eddy J. Rogers, Jr.
24.5 Power of Attorney of Roger H. Hurlbut.
24.6 Power of Attorney of Donald C. Beaver.
- ---------------
* Incorporated by reference as indicated.
2
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company 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 Houston, State of Texas, on August 7, 1996.
LIVING CENTERS OF AMERICA, INC.
By: /s/ SUSAN THOMAS WHITTLE
----------------------------------
Susan Thomas Whittle
Vice President, General Counsel
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name and Signature Title Date
------------------ ----- ----
<S> <C> <C>
*
- ----------------------------------- Chairman, Chief Executive Officer, August 7, 1996
Edward L. Kuntz and Director (Principal Executive
Officer)
*
- ----------------------------------- President, Chief Operating Officer, August 7, 1996
Leroy D. Williams and Director (Principal Financial
Officer)
*
- ----------------------------------- Director
Roger J. Bulger, M.D., FACP August 7, 1996
*
- ----------------------------------- Director August 7, 1996
Eddy J. Rogers, Jr.
*
- ----------------------------------- Director August 7, 1996
Roger H. Hurlbut
*
- ----------------------------------- Director August 7, 1996
Donald C. Beaver
/s/ RONALD W. FLEMING
- ----------------------------------- Controller (Principal Accounting Officer) August 7, 1996
Ronald W. Fleming
*By: /s/ SUSAN THOMAS WHITTLE
------------------------------
Susan Thomas Whittle
Attorney-in-Fact
</TABLE>
3
<PAGE> 5
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
----------
PAGE
----
EXHIBIT NO. DESCRIPTION NUMBER*
----------- ----------- -------
<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Company, as amended.
5 Opinion of Susan Thomas Whittle, General Counsel of the
Company.
10.1 Living Centers of America, Inc. 1992 Stock Option Plan, as
amended and restated.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Susan Thomas Whittle (included in Exhibit 5).
24.1 Power of Attorney of Edward L. Kuntz.
24.2 Power of Attorney of Leroy D. Williams.
24.3 Power of Attorney of Roger J. Bulger.
24.4 Power of Attorney of Eddy J. Rogers, Jr.
24.5 Power of Attorney of Roger H. Hurlbut.
24.6 Power of Attorney of Donald C. Beaver.
</TABLE>
- -------------------
* Included in manually signed original only.
<PAGE> 1
Exhibit 4.1
RESTATED CERTIFICATE OF INCORPORATION
Living Centers of America, Inc., a corporation organized and existing
under and by virtue of the General Corporation Law of Delaware,
DOES HEREBY CERTIFY:
FIRST: The name of the corporation is Living Centers of America,
Inc. and the name under which the corporation was originally incorporated on
June 6, 1977 was ARA Health Facilities, Inc. The name of the corporation was
amended to ARA Health/Care, Inc. on April 4, 1983, to ARA Living Centers, Inc.
on December 31, 1987 and to Living Centers of America, Inc. on December 17,
1991.
SECOND: That by unanimous consent the Board of Directors of
Living Centers of America, Inc. adopted resolution setting forth a proposed
amendment of the Certificate of Incorporation of said corporation declaring
said amendment to be advisable and calling a meeting of the stockholders of
said corporation for consideration thereof. The text of the Certificate of
Incorporation as amended or supplemented heretofore is further amended hereby
to read in full as set forth in Exhibit A attached hereto. The Restated
Certificate of Incorporation restates, integrates and amends the Certificate of
Incorporation of this corporation.
THIRD: That thereafter, the sole stockholder executed its
unanimous written consent in favor of the Restated Certificate of Incorporation
and included in such consent waiver of notice of the special meeting in
accordance with Sections 228 and 229 of the General Corporation Law of
Delaware.
FOURTH: That said Restated Certificate of Incorporation was duly
adopted in accordance with the provisions of Section 242 and Section 245 of the
General Corporation Law of Delaware.
IN WITNESS WHEREOF, said corporation has caused this certificate to be
signed by Jan E. Farley, its Vice President, and Sydney K. Boone, Jr., its
Assistant Secretary this 6th day of February, 1992.
By: /s/ JAN E. FARLEY
-------------------------
Jan E. Farley
Vice President
Attest: /s/ SYDNEY K. BOONE, JR.
--------------------------
Sydney K. Boone, Jr.
Assistant Secretary
<PAGE> 2
RESTATED CERTIFICATE OF INCORPORATION
FIRST: Corporate Name. The name of the corporation is Living
Centers of America, Inc. (the "corporation").
SECOND: Registered Office. The registered office of the
corporation is located at Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, in the County of New Castle, in the State of Delaware. The
name of its registered agent at that address is The Corporation Trust Company.
THIRD: Corporate Purpose. The purpose of the corporation is to
engage in any lawful act or activity for which a corporation may be organized
under the General Corporation Law of Delaware.
FOURTH: Capital Stock.
(A) Authorized Amount. The aggregate number of shares which the
corporation shall have authority to issue is 40 million (40,000,000) shares,
divided into 35 million (35,000,000) shares of Common Stock, par value $.01 per
share, and 5 million (5,000,000) shares of Preferred Stock, par value $.01 per
share.
(B) Authority of Board to Fix Terms of Shares. The Board of
Directors of the corporation shall have the full authority permitted by law to
fix by resolution full, limited, multiple or fractional, or no voting rights,
and such designations, preferences, privileges, limitations, options,
conversion rights and relative, participating or other special rights and the
qualifications, limitations or restrictions thereof of the Preferred Stock or
any series thereof that may be desired and that have not been fixed herein.
The Board of Directors is also authorized to increase or decrease the number of
shares of any series, subsequent to the issue of that series, but not below the
number of shares of such series then outstanding. In case the number of shares
of any series shall be so decreased, the shares constituting such decrease
shall resume the status which they had prior to the adoption of the resolution
originally fixing the number of shares of such series.
FIFTH: Board of Directors.
(A) Number, Classification. The board of directors shall consist
of such number of directors, not less than 3 nor more than 9, as may be
determined from time to time by resolution adopted by a vote of at least three-
quarters of the entire board of directors. The board of directors shall be
divided into three classes, Class I, Class II and Class III. The number of
directors in each class shall be the whole number contained in the quotient
arrived at by dividing the authorized number of directors by three, and if a
fraction is also contained in such quotient, then if such fraction is 1/3 the
extra director shall be a member of Class III and if the fraction is 2/3 one of
the extra directors shall be a member of Class III and the other shall be a
member of Class II. After the initial division of the Board of Directors into
classes, each director shall serve for a term ending on the date of the third
annual meeting following the annual meeting at which such director was elected
and until such director's successor shall have been elected and qualified,
except in the event of death, resignation or removal. The three initial
classes of directors shall be comprised as follows:
(1) Class I shall be comprised of directors who shall
serve until the annual meeting of stockholders in 1993 and until their
successors shall have been elected and qualified.
(2) Class II shall be comprised of directors who shall
serve until the annual meeting of stockholders in 1994 and until their
successors shall have been elected and qualified.
<PAGE> 3
(3) Class III shall be comprised of directors who shall
serve until the annual meeting of stockholders in 1995 and until their
successors shall have been elected and qualified.
(B) Removal of Directors. A director of the corporation may not
be removed during his term without cause. In the event of any increase or
decrease in the authorized number of directors, (i) each director then serving
as such shall nevertheless continue as a director of the class of which he is a
member until the expiration of his current term, or his prior death,
resignation or removal, and (ii) the newly created or eliminated directorship
resulting from such increase or decrease shall be apportioned by the Board of
Directors to such class or classes as shall, so far as possible, bring the
number of directors in the respective classes into conformity with the formula
in this Article, as applied to the new authorized number of directors.
(C) Elections of Directors. Elections of directors need not be by
written ballot unless the by-laws of the corporation shall so provide.
SIXTH: By-laws. The Board of Directors shall have the power,
in addition to the stockholders, to make, alter, or repeal the by-laws of the
corporation. The by-laws of the corporation shall not be made, repealed,
altered, amended or rescinded by the stockholders of the corporation except by
the vote of the holders of not less than 66-2/3% of the total voting power of
all shares of stock of the corporation entitled to vote in the election of
directors, considered for purposes of this Article SIXTH as one class.
SEVENTH: Liability of Directors. A director of the corporation
shall not be personally liable to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, as the same exists
or hereafter may be amended, or (iv) for any transaction from which the
director derived an improper personal benefit. If the Delaware General
Corporation Law is hereafter amended to authorize corporate action further
limiting or eliminating the personal liability of directors, then the liability
of a director to the corporation shall be limited or eliminated to the fullest
extent permitted by the Delaware General Corporation Law, as so amended from
time to time. Any repeal or modification of this Article SEVENTH shall be
prospective only, and shall not adversely affect any limitation on the personal
liability of a director of the corporation existing at the time of such repeal
or modification.
EIGHTH: Indemnification. The corporation shall, to the fullest
extent permitted by the Delaware General Corporation Law, as the same may be
amended and supplemented, indemnify any and all past, present and future
directors and officers of the corporation from and against any and all costs,
expenses (including attorneys' fees), damages, judgments, penalties, fines,
punitive damages, excise taxes assessed with respect to an employee benefit
plan and amounts paid in settlement in connection with any action, suit or
proceeding, whether by or in the right of the corporation, a class of its
security holders or otherwise, in which the director or officer may be involved
as a party or otherwise, by reason of the fact that such person was serving as
a director, officer, employee or agent of the corporation.
NINTH: Stockholder Actions.
(A) Actions by Meetings Only. No action shall be taken by the
stockholders of the corporation except at an annual or special meeting of such
stockholders and stockholders of the corporation may not act by written
consent.
<PAGE> 4
(B) Special Meetings. Special meetings of the stockholders of the
corporation for any purpose or purposes may be called at any time by the Board
of Directors of the corporation, or by a committee of the Board of Directors
which has been duly designated by the Board of Directors and whose powers and
authority, as provided in a resolution of the Board of Directors or in the
bylaws of the corporation, include the power to call such meetings. Special
meetings of stockholders of the corporation may not be called by any other
person or persons.
TENTH: Certain Business Combinations. The affirmative vote of
the holders of not less than 66-2/3% of the outstanding shares of "Voting
Stock" (as hereinafter defined) of the corporation, including the affirmative
vote of the holders of not less than 66-2/3% of the outstanding shares of
Voting Stock not owned, directly or indirectly, by any "Related Person" (as
hereinafter defined), shall be required for the approval or authorization of
any "Business Combination" (as hereinafter defined) of the corporation with any
Related Person; provided, however, that the second 66-2/3% voting requirement
referred to above shall not be applicable if the Business Combination is
approved by the affirmative vote of the holders of not less than 90% of the
outstanding shares of Voting Stock; and further provided that the first 66-2/3%
voting requirement shall not be applicable if:
1. The Board of Directors of the corporation by a vote
of not less than 75% of the directors then holding office (a) have
expressly approved in advance the acquisition of outstanding shares of
Voting Stock of the corporation that caused the Related Person to
become a Related Person or (b) have approved the Business Combination
prior to the Related Person involved in the Business Combination
having become a Related Person;
2. The Business Combination is solely between the
corporation and another corporation, 100% of the Voting Stock of which
is owned directly or indirectly by the corporation; or
3. All of the following conditions have been met: (a)
the Business Combination is a merger or consolidation, the
consummation of which is proposed to take place within one year of the
date of the transaction pursuant to which such person became a Related
Person and the cash or fair market value of the property, securities
or other consideration to be received per share by holders of Common
Stock of the corporation in the Business Combination is not less than
the highest per share price (with appropriate adjustments for
recapitalizations and for stock splits, reverse stock splits and stock
dividends) paid by the Related Person in acquiring any of its holdings
of the corporation's Common Stock; (b) the consideration to be
received by such holders is either cash or, if the Related Person
shall have acquired the majority of its holdings of the corporation's
Common Stock for a form of consideration other than cash, in the same
form of consideration as the Related Person acquired such majority;
(c) after such Related Person has become a Related Person and prior to
the consummation of such Business Combination: (i) except as approved
by a majority of the "Continuing Directors" (as hereinafter defined),
there shall have been no failure to declare and pay at the regular
date therefor any full quarterly dividends (whether or not cumulative)
on any outstanding shares of Preferred Stock of the corporation, (ii)
there shall have been no reduction in the annual rate of dividends
paid per share on the corporation's Common Stock (adjusted as
appropriate for recapitalization and for stock splits, reverse stock
splits and stock dividends) except as approved by a majority of the
Continuing Directors, (iii) such Related Person shall not have become
the "Beneficial Owner" (as hereinafter defined) of any additional
shares of Voting Stock of the corporation except as part of the
transaction which resulted in such Related Person become a Related
Person, and (iv) such Related Person shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance or any tax credits or other tax advantages
provided by the corporation, whether in anticipation of or in
<PAGE> 5
connection with such Business Combination or otherwise; and (d) a
proxy statement, responsive to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations thereunder (or any subsequent provisions replacing the
Exchange Act, rules or regulations), shall be mailed to all
stockholders of record at least 30 days prior to the consummation of
the Business Combination for the purpose of soliciting stockholder
approval of the Business Combination and shall contain at the front
thereof, in a prominent place, any recommendations as to the
advisability (or inadvisability) of the Business Combination which the
Continuing Directors, or any of them, may choose to state and, if
deemed advisable by a majority of the Continuing Directors, an opinion
of a reputable investment banking firm as to the fairness (or
unfairness) of the terms of such Business Combination from the point
of view of the remaining stockholders of the corporation (such
investment banking firm to be selected by a majority of the Continuing
Directors and to be paid a reasonable fee for its services by the
corporation upon receipt of such opinion).
For the purposes of this Article:
(i) The term "Business Combination" shall mean (a) any
merger or consolidation of the corporation or a subsidiary with or
into a Related Person, (b) any sale, lease, exchange, transfer or
other disposition, including without limitation a mortgage or any
other security device, of all or any "Substantial Part" (as
hereinafter defined) of the assets either of the corporation
(including, without limitation, any voting securities of a subsidiary)
or of a subsidiary to a Related Person (other than a distribution by
the corporation or a subsidiary to the Related Person of assets in
connection with a pro rata distribution by the corporation to all
stockholders), (c) any merger or consolidation of a Related Person
with or into the corporation or a subsidiary of the corporation, (d)
any sale, lease, exchange, transfer or other disposition of all or any
Substantial Part of the assets of a Related Person to the corporation
or a subsidiary of the corporation, (e) the issuance of any securities
(other than by way of pro rata distribution to all stockholders) of
the corporation or a subsidiary of the corporation to a Related
Person, (f) the acquisition by the corporation or a subsidiary of the
corporation of any securities of a Related Person, (g) any
recapitalization that would have the effect of increasing the voting
power of a Related Person, (h) any series or combination of
transactions having the same effect, directly or indirectly, as any of
the foregoing and (i) any agreement, contract or arrangement providing
for any of the transactions described in this definition of Business
Combination.
(ii) The term "Continuing Director" shall mean any member
of the Board of Directors of the corporation who is not affiliated
with a Related Person and who was a member of the Board of Directors
immediately prior to the time that the Related Person became a Related
Person, and any successor to a Continuing Director who is not
affiliated with the Related Person and is recommended to succeed a
Continuing Director by a majority of Continuing Directors then serving
as members of the Board of Directors of the corporation.
(iii) The term "Related Person" shall mean and include any
individual, corporation, partnership or other person or entity which,
together with its "Affiliates" and "Associates" (as defined on January
20, 1992 in Rule 12b-2 under the Exchange Act), is the "Beneficial
Owner" (as defined on January 20, 1992 in Rule 13d-3 under the
Exchange Act) in the aggregate of 10% or more of the outstanding
Voting Stock of the corporation, and any Affiliate or Associate of any
such individual, corporation, partnership or other person or entity.
(iv) The term "Substantial Part" shall mean more than 10%
of the book value of the total assets of the corporation in question
as of the end of its most recent fiscal year ending prior to the time
the determination is being made.
<PAGE> 6
(v) Without limitation, any shares of Common Stock of the
corporation that any person has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options,
or otherwise, shall be deemed beneficially owned by such person.
(vi) For the purpose of subparagraph (3) of this Article,
the term "other consideration to be received" shall include, without
limitation, Common Stock of the corporation retained by its existing
public stockholders in the event of a Business Combination in which
the corporation is the surviving corporation.
(vii) The term "Voting Stock" shall mean all outstanding
shares of capital stock of the corporation or another corporation
entitled to vote generally in the election of directors and each
reference to a proportion of shares of Voting Stock shall refer to
such proportion of the votes entitled to be cast by such shares.
ELEVENTH: Certain Amendments. The provisions set forth in this
Article ELEVENTH and in Articles SIXTH (dealing with the classification and
number of directors and the alteration of by-laws by stockholders), SEVENTH
(dealing with liability of directors), NINTH (dealing with the prohibition
against stockholder action without meetings), and TENTH (dealing with the
66-2/3% vote of stockholders required for certain Business Combinations) herein
may not be repealed or amended in any respect, and no Article imposing
cumulative voting in the election of directors may be added, unless such action
is approved by the affirmative vote of not less than 66-2/3% of the total
voting power of all shares of stock of the corporation entitled to vote in the
election of directors, considered for purposes of this Article ELEVENTH as one
class. Amendment to the provisions set forth in this Article ELEVENTH and in
Article TENTH shall also require the affirmative vote of 66-2/3% of such total
voting power excluding the vote of shares owned by a "Related Person" (as
defined in Article TENTH). The voting requirements contained in Article SIXTH,
Article TENTH and this Article ELEVENTH herein shall be in addition to the
voting requirements imposed by law, other provisions of this Restated
Certificate of Incorporation or any Certificate of Designation of Preferences
in favor of certain classes or series of classes of shares of the corporation.
TWELFTH: Amendment of Certificate of Incorporation. The
corporation reserves the right to amend, alter, change or repeal any provision
contained in this Restated Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders are
granted subject to this reservation. Notwithstanding the foregoing, the
provisions set forth in Articles SIXTH, SEVENTH, NINTH, TENTH and ELEVENTH may
not be repealed or amended in any respect unless such repeal or amendment is
approved as specified in Article ELEVENTH herein.
<PAGE> 7
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
LIVING CENTERS OF AMERICA, INC.
Pursuant to Section 242 of the General Corporation Law of the State of
Delaware, Living Centers of America, Inc., a corporation organized and existing
under the laws of Delaware (the "Corporation"), DOES HEREBY CERTIFY as follows:
FIRST: That the Board of Directors of the Corporation duly
adopted a resolution setting forth a proposed amendment to the Restated
Certificate of Incorporation of the Corporation, declaring its advisability and
directing that such amendment be submitted for consideration by the
stockholders at the next annual meeting of stockholders of the Corporation.
Such resolution provided as follows:
RESOLVED, that subject to the approval of the Company's
stockholders at the 1996 Annual Meeting of Stockholders, the Company
amend its Restated Certificate of Incorporation by deleting paragraph
(A) from Article FOURTH thereof and restating such paragraph (A) in
its entirety to read as follows:
"(A) Authorized Amount. The aggregate number of shares
which the corporation shall have the authority to issue is 80
million (80,000,000) shares, divided into 75 million
(75,000,000) shares of Common Stock, par value $0.01 per
share, and 5 million (5,000,000) shares of Preferred Stock,
par value $0.01 per share."
SECOND: That thereafter, the stockholders of the Corporation
duly approved the foregoing amendment at the 1996 Annual Meeting of
Stockholders of the Corporation.
THIRD: That such amendment was duly adopted in accordance
with Section 242 of the Delaware General Corporation Law.
<PAGE> 8
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed and acknowledged as its act and deed by Edward L. Kuntz, its Chairman
of the Board, and by Susan Thomas Whittle, its Secretary, to be effective as of
the 6th day of February, 1996.
LIVING CENTERS OF AMERICA, INC.
By: /s/ EDWARD L. KUNTZ
---------------------------------
Edward L. Kuntz
Chairman of the Board
ATTEST:
By: /s/ SUSAN THOMAS WHITTLE
-----------------------------------
Susan Thomas Whittle, Secretary
<PAGE> 1
Exhibit 5
August 7, 1996
Living Centers of America, Inc.
15415 Katy Freeway, Suite 800
Houston, Texas 77094
Gentlemen:
As set forth in a Registration Statement on Form S-8 (the
"Registration Statement") being filed by Living Centers of America, Inc. a
Delaware corporation (the "Company"), with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act"),
relating to 600,000 shares (the "Shares") of the Company's common stock, par
value $.01 per share (the "Common Stock"), subject to issuance pursuant to the
terms of the Company's 1992 Stock Option Plan, as amended and restated (the
"Plan"), certain legal matters in connection with the Shares are being passed
upon for the Company by me. At your request, this opinion is being furnished
to you for filing as Exhibit 5 to the Registration Statement.
In my capacity as the Company's General Counsel, I have familiarized
myself with the Company's Restated Certificate of Incorporation and By-Laws,
each as amended to date, and have examined the originals, or copies certified
or otherwise identified, of corporate records of the Company, including minute
books of the Company, certificates of public officials and of representatives
of the Company, statutes and other instruments and documents, as a basis for
the opinions hereafter expressed. In giving such opinions I have relied upon
certificates of officers of the Company with respect to the accuracy of the
material factual matters contained in such certificates.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications hereinafter set forth, I am the opinion that:
1. The Company is a corporation duly incorporated in the State of
Delaware, is validly existing and in good standing under the
laws of the State of Delaware, and is in good standing as a
foreign corporation under the laws of the State of Texas.
2. Upon the issuance of and payment for the Common Stock in
accordance with the terms and provisions of the Plan, the
Common Stock will be duly authorized, validly issued, fully
paid and nonassessable.
The opinions set forth above are limited to the laws of the State of
Texas and Delaware and the applicable federal laws of the United States.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me in the Registration Statement
under the caption "Interests of Named Experts and Counsel".
Very truly yours,
/s/ SUSAN THOMAS WHITTLE
Susan Thomas Whittle
<PAGE> 1
Exhibit 10.1
LIVING CENTERS OF AMERICA, INC.
1992 STOCK OPTION PLAN
(AS AMENDED AND RESTATED EFFECTIVE FEBRUARY 4, 1993)
The purpose of the Living Centers of America, Inc. 1992 Stock Option
Plan (the "Plan") is to authorize the Compensation Committee (the "Committee")
of the Board of Directors of the Company (the "Board") to provide designated
officers and other employees of Living Centers of America, Inc. and such of its
subsidiaries as are designated by the Committee (hereinafter collectively
referred to as the "Company") and to automatically provide nonemployee
directors on the Board with certain rights to acquire common stock of the
Company through the grant of incentive stock options and nonqualified stock
options. The Company believes that this compensation program will cause the
participants to contribute materially to the growth of the Company, thereby
benefitting the Company's stockholders.
1. ADMINISTRATION
The Plan shall be administered and interpreted by the Stock Option
Committee consisting of not less than two (2) persons appointed by the Board
from among its members who are not employees of the Company. A person may
serve on the Committee only if he is a "disinterested person" within the
meaning of 17 C.F.R. Section 240.16b-3(c)(2)(i). After receiving
recommendations from management of the Company, the Committee shall have the
sole authority to determine (i) the employees to whom options shall be granted
under the Plan, (ii) the type, size and terms of the options to be made to each
employee selected, (iii) the time when the awards will be granted to employees
and the duration of the exercise period and (iv) any other matters arising
under the Plan. The Committee shall have full power and authority to
administer and interpret the Plan and to adopt or amend such rules,
regulations, agreements and instruments for implementing the Plan and for
conducting its business as its deems necessary or advisable, in its sole
discretion. The Committee's interpretations of the Plan and all determinations
made by the Committee pursuant to the powers vested in it hereunder shall be
conclusive and binding on all persons having any interests in the Plan or in
any awards granted hereunder. The Committee may delegate to officers or
managers of the Company the authority, subject to such terms as the Committee
shall determine, to perform administrative function under the Plan.
2. OPTIONS
Incentives under the Plan shall consist of incentive stock options and
nonqualified stock options (hereinafter collectively referred to as "Options").
The Options granted to employees of the Company will hereinafter be referred to
as "Employee Options," and the Options granted under the Plan to directors will
hereinafter be referred to as "Director Options." Director Options shall
consist only of nonqualified stock options. All Options shall be subject to
the terms and conditions set forth herein, and all Employee Options shall be
subject to such other terms, restrictions and conditions consistent with this
Plan as the Committee deems appropriate and as are specified in writing by the
Company to the employee (the "Option Letter"). The Committee shall approve the
form and provisions of each Option Letter to an employee. Employee Options
under a particular Section of the Plan need not be uniform as among employees,
and Employee Options under two or more Sections of the Plan may be combined in
one instrument.
<PAGE> 2
3. SHARES SUBJECT TO THE PLAN
(a) Subject to the adjustment specified below, the
aggregate number of shares of common stock of the Company ("Company
Stock") that have been or may be issued or transferred under the Plan
is 800,000 shares. The shares may be authorized but unissued shares
or treasury shares. If and to the extent options granted under the
Plan terminate, expire,or cancel without having been exercised, the
shares subject to such option or such award shall again be available
for purposes of the Plan.
(b) If there is any change in the number or kind of
shares of Company Stock through the declaration of stock dividends, or
through a recapitalization, stock splits, or combinations or exchanges
of such shares, or merger, reorganization or consolidation of the
Company, reclassification or change in par value or by reason of any
other extraordinary or unusual events, the number of shares of Company
Stock available for Options and the number of such shares covered by
outstanding Options, and the price per share or the applicable market
value of such Options, shall be proportionately or otherwise
appropriately adjusted by the Committee; provided, however, that any
fractional shares resulting from such adjustment shall be eliminated.
(c) If the Company is reorganized, or merged or
consolidated or party to a plan of exchange with another corporation
pursuant to which reorganization, merger, consolidation or plan of
exchange stockholders of the Company receive cash or other securities,
or if the Company is dissolved or liquidated, the Committee may cancel
all outstanding Options as of the effective date of the
reorganization, merger, consolidation, plan of exchange or any
dissolution or liquidation of the Company, by giving notice to each
holder thereof or his personal representative of its intention to do
so and by permitting the purchase for a period of approximately thirty
days during the sixty days next preceding such effective date of all
of the shares of Company Stock subject to such outstanding Options,
without regard to the installment exercise provisions of the Option
Letter imposed under Section 5(d) of the Plan.
4. ELIGIBILITY FOR PARTICIPATION
(a) EMPLOYEE OPTIONS. Officers and other employees of
the Company designated by the Committee shall be eligible to
participate in the Plan (hereinafter referred to individually as the
"Participant" and collectively as the "Participants"). After
receiving recommendations from management of the Company, the
Committee shall select the persons to receive Employee Options (the
"Employee Optionees") from among the Participant. Nothing contained
in this Plan shall be construed to limit the right of the Company to
grant options to any person for any proper corporate purpose.
(b) DIRECTOR OPTIONS. All persons who are serving as
directors of the Company on or after the first business day after the
1993 Annual Meeting of Stockholders shall receive Director Options
(the "Director Optionees"); provided, however, that a director who is
or has been an employee of the Company shall not be eligible to become
a Director Optionee unless and until such director is elected to a new
term of office as a director while no longer serving as an employee of
the Company.
<PAGE> 3
5. GRANTING OF OPTIONS
(a) NUMBER OF SHARES.
(i) EMPLOYEE OPTIONS. The Committee shall grant
to each Employee Optionee a number of stock options determined
in its sole discretion. The Committee, in its sole
discretion, may provide a greater amount of stock options to
any Employee Optionee at any time.
(ii) DIRECTOR OPTIONS. On the first business day
after the 1993 Annual Meeting of Stockholders of the Company,
each then existing nonemployee director of the Company shall
automatically be granted a Director Option to purchase 5,000
shares of Company Stock. Annual awards of Director Options to
purchase 1,000 shares of Company Stock shall thereafter
automatically be granted to each nonemployee director of the
Company on the first business day following each of the
Company's Annual Meetings of Stockholders ("Annual Grant
Date"); provided, however, that any nonemployee director on an
Annual Grant Date who has not received an initial grant of a
Director Option to purchase 5,000 shares of Company Stock
shall instead then receive such initial Director Option
covering 5,000 shares.
(b) TYPE OF OPTION AND PRICE.
(i) EMPLOYEE OPTIONS. The Committee may grant to
employees options qualifying as incentive stock options
("Incentive Stock Options") within the meaning of Section 422
of the Internal Revenue Code of 1986, as amended (the "Code")
and/or other stock options ("Nonqualified Stock Options") in
accordance with the terms and conditions set forth herein or
any combination of Incentive Stock Options and Nonqualified
Stock Options. The purchase price of Company Stock subject to
an Incentive Stock Option or Nonqualified Stock Options shall
be the fair market value of a share of such stock on the date
such Option is granted. Notwithstanding the foregoing, with
respect to any Employee Option other than an Incentive Stock
Option, the price at which Company Stock may be purchased may
be equal to either (A) the fair market value of Company Stock
as of a date subsequent to the date of grant as specified by
the Committee in the Option Letter or (B) the average of such
fair market value over a period of time as specified by the
Committee in the Option Letter, but in no event shall the
price be less than fifty percent (50%) of the fair market
value of Company Stock on the date of grant. The "fair market
value" of Company Stock on a particular date shall be deemed
to be (A) if the Company Stock is listed on a national
securities exchange, the closing price of a share of Company
Stock on the principal stock exchange on that date, or, if
there shall have been no such sale so reported on that date,
on the last preceding date on which such a sale was so
reported, (B) if the Company Stock is not so listed but is
quoted on the NASDAQ National Market System, the sales price
per share of the company Stock, on the NASDAQ National Market
System published in The Wall Street Journal for that date, or,
if there shall have been no such sale so reported for that
date, on the last preceding date on which such a sale was so
reported, or (C) if the Company Stock is not so listed or
quoted, the average of the closing bid and asked prices on
that date in the over-the-counter market, as furnished by the
National Association of Securities Dealers Automated System,
or, if such information is not available from such system, as
furnished by any similar system then engaged in the business
of reporting such information and selected by the Company, or
if there is not such system, as furnished by any member of the
National Association of Security Dealers selected by the
Company.
<PAGE> 4
(ii) DIRECTOR OPTIONS. All Director Options shall
consist solely of Nonqualified Stock Options. The purchase
price of Company Stock subject to a Director Option shall be
the fair market value of Company Stock, as determined above,
on the date the Director Option is granted.
(c) EXERCISE PERIOD. The Committee shall determine the
option exercise period of each Employee Option, which period shall not
exceed ten (10) years from the date of grant. The option exercise
period of each Director Option shall be ten (10) years.
Notwithstanding any determinations by the Committee regarding the
exercise period of any Employee Option or anything in the paragraph
(c) regarding Director Options to the contrary, all outstanding
Options shall become immediately exercisable upon a Change of Control
of the Company (as defined in Section 7).
(d) VESTING OF OPTIONS. The vesting period for Employee
Options shall commence on the date of grant and shall end on such date
as is determined by the Committee, in its sole discretion, which shall
be specified in the Option Letter. The vesting period for Director
Options shall commence on the Annual Grant Date, with twenty percent
(20%) of the shares originally subject to each Director Option
becoming exercisable on each successive Annual Meeting of
Stockholders. Notwithstanding any determinations by the Committee
regarding the vesting period of any Employee Option or anything in
this paragraph (d) regarding Director Option to the contrary, all
outstanding Options shall become immediately exercisable upon a Change
of Control of the Company (as defined in Section 7).
(e) MANNER OF EXERCISE. An Optionee may exercise an
Option by delivering a notice of exercise to the Committee with
accompanying payment of the option price. Such notice may instruct
the Company to deliver shares of Company Stock due upon the exercise
of the Option to any registered broker or dealer designated by the
Company ("Designated Broker") in lieu of delivery to the Optionee.
Such instructions must designate the account into which the shares are
to be deposited. The Optionee may tender this notice of exercise,
which has been properly executed by the Optionee, and the
aforementioned delivery instructions to any Designated Broker.
(f) TERMINATION OF EMPLOYMENT OR SERVICE, DISABILITY OR
DEATH.
(i) In the event the Employee Optionee during his
lifetime ceases to be an employee of the Company for any
reason other than death or the Director Optionee ceases to
serve as a director for any reason other than death, any
Option which is otherwise exercisable by such Optionee shall
terminate unless exercised within three (3) months of the date
on which he ceases to be an employee, with respect to Employee
Options (or within such other period of time as may be
specified in the Option Letter), or director, with respect to
Director Options, but in any event, no later than the date of
expiration of the option exercise period; provided, however,
that in the case of an Optionee who is disabled within the
meaning of Section 22(e)(3) of the Code, such period shall be
one (1) year rather than three (3) months (except as the
Committee may otherwise provide in the Option Letter). Upon
the termination of service by a director, the unvested portion
of his Director Options shall be cancelled.
(ii) In the event of the death of the Optionee
while he is an employee or director of the Company or within
not more than three (3) months of the date on which he ceases
to be an employee, with respect to Employee Options (or within
such other period of time as may be specified in the Option
Letter), or director, with respect to Director Options, any
Option which was otherwise exercisable by the Optionee at the
<PAGE> 5
date of death may be exercised by his personal representative
at any time prior to the expiration of one (1) year from the
date of death, but in any event no later than the date of
expiration of the option exercise period.
(g) SATISFACTION OF OPTION PRICE. The Employee Optionee
shall pay the option price (1) in cash, or (2) subject to Committee
approval by delivering shares of Company Stock already owned by the
Optionee and having a fair market value on the date of exercise equal
to the option price, or (3) subject to Committee approval, by electing
to have the Company withhold upon exercise shares of Company Stock
having a fair market value on the date of exercise equal to the option
price, or (4) subject to Committee approval, by a combination of the
foregoing. A Director Optionee shall pay the option price in cash,
with Company Stock, or by a combination of the foregoing. If a
Director Optionee elects to pay the option price for a Director
Optionee in whole or in part with Company Stock, such Company Stock
must have been previously held by the director for at least six (6)
months prior to exercise. The Optionee shall pay the option price and
the amount of withholding tax due, if any, at the time of exercise.
Shares of Company Stock shall not be issued or transferred upon
exercise of an Option until the option price and the withholding
obligation is fully paid.
(h) LIMITS ON INCENTIVE STOCK OPTIONS. Each grant of an
Incentive Stock Option shall provide that it is not transferable by
the Optionee otherwise than by will or the laws of descent and
distribution, and is exercisable, during the Optionee's lifetime, only
by the Optionee and that the aggregate fair market value of the
Company Stock on the date of the grant of the Option with respect to
which Incentive Stock Options are exercisable for the first time by an
Optionee during any calendar year under the Plan and under any other
stock option plan of the Company shall not exceed $100,000. An
Incentive Stock Option shall not be granted to any Participant who, at
the time of grant, owns stock possessing more than ten percent (10%)
of the total combined voting power of all classes of stock of the
Company or parent of the Company unless the option price is at least
one hundred ten percent (110%) of the fair market value of Company
Stock subject to option, and such Incentive Stock Option by its terms
is not exercisable after the expiration of five (5) years from the
date the Option is granted. No Incentive Stock Option shall be
granted more than ten (10) years after the effective date of the Plan.
6. TRANSFERABILITY OF OPTIONS
Only a Participant or his or her authorized legal representative may
exercise rights under an Option. Such persons may not transfer those rights
except by will or by the laws of descent and distribution. When a Participant
dies, the personal representative or other person entitled to succeed to the
rights of the Participant ("Successor Optionee") may exercise such rights. A
Successor Optionee must furnish proof satisfactory to the Company of his or her
right to exercise the Option under the Participant's will or under the
applicable laws of descent and distribution. Except for transfers pursuant to
a domestic relations order approved by a federal or state court, no Option
shall be subject in whole or in part, to attachment, execution or levy of any
kind.
7. CHANGE OF CONTROL OF THE COMPANY
As used herein, a "Change of Control" shall be deemed to have taken
place if (i) any Person (including any individual, firm, corporation,
partnership or other entity except the Company or any employee benefit plan of
the Company or of any Affiliate or Associate, both as defined in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of 1934, as
amended, any Person or any entity organized, appointed or established by the
Company for or pursuant to the terms of any such employee benefit plan),
together with all Affiliates and Associates of such Person, shall become the
<PAGE> 6
beneficial owner in the aggregate of thirty percent (30%) or more of the common
stock of the Company then outstanding; provided, however, that no "Change of
Control" shall be deemed to occur during any period in which any such Person,
and its Affiliates and Associates, are bound by the terms of a standstill
agreement under which such parties have agreed not to acquire more than thirty
percent (30%) of the common stock of the company then outstanding or to solicit
proxies, or (ii) during any twenty-four (24) month period, individuals who at
the beginning of such period constituted the Board cease for any reason to
constitute a majority thereof, unless the election, or the nomination for
election by the Company's stockholders, of at least seventy-five percent (75%)
of the directors who were not directors at the beginning of such period was
approved by a vote of at least seventy-five percent (75%) of the directors in
office at the time of such election or nomination who were directors at the
beginning of such period.
8. AMENDMENT AND TERMINATION OF THE PLAN
(a) AMENDMENT. The Board may amend or terminate the Plan
at any time; provided, however, that the provisions of the Plan which
constitute a formula award for purposes of Rule 16b-3 under the
Securities Exchange Act of 1934 may not be amended more than once
every six (6) months, other than to comport with changes in the Code
or the rules thereunder. Any amendment that materially increases the
benefits accruing to Participants under the Plan, increases the
aggregate number of shares of Company Stock that may be issued or
transferred under the Plan (other than by operation of Section 3(b)),
or materially modifies the requirements as to eligibility for
participant in the Plan shall be subject to approval by the
stockholders of the Company.
(b) TERMINATION OF PLAN. The Plan shall terminate on
February 3, 2002, unless terminated earlier by the Board or unless
extended by the Board with the approval of the stockholders.
(c) TERMINATION AND AMENDMENT OF OUTSTANDING OPTIONS. A
termination or amendment of the Plan that occurs after an Option is
made shall not result in the termination or amendment of the Option
unless the Optionee consents or unless the Committee acts under
Section 3(c) or Section 16(b) of the Plan. The termination of the
Plan shall not impair the power and authority of the Committee with
respect to an outstanding Option. Whether or not the Plan has
terminated, an outstanding Option may be terminated or amended under
Section 3(c) or Section 16(b) of the Plan or may be amended by
agreement of the Company and the Optionee consistent with the Plan.
9. FUNDING OF THE PLAN
This Plan shall be unfunded. The Company shall not be required to
establish any special or separate fund or to make any other segregation of
assets to assure the payment of any Options under this Plan. In no event shall
interest be paid or accrued on any option, including unexercised installments.
10. RIGHTS OF PARTICIPANTS
Nothing in this Plan shall entitle any Participant or other person to
any claim or right to be granted an award under this Plan. Neither this Plan
nor any action taken hereunder shall be construed as giving any Participant any
rights to be retained in the employ of the Company; nor shall any Option confer
on a Participant any of the rights of a shareholder of the Company unless or
until shares are duly issued or transferred to the Participant in accordance
with the terms of the Option.
<PAGE> 7
11. WITHHOLDING OF TAXES
The Company may make such provisions as it may deem appropriate for
the withholding of any taxes which it determines is required in connection with
any Options granted under the Plan.
12. AGREEMENTS WITH EMPLOYEE OPTIONEES
Each Employee Option made under this Plan shall be evidenced by an
Option Letter containing such terms and conditions as the Committee shall
approve.
13. GENERAL RESTRICTIONS APPLICABLE TO OPTIONS
(a) REQUIREMENTS FOR ISSUANCE OF SHARES. No Company
Stock shall be issued or transferred upon payment of any Option
hereunder unless and until all legal requirements applicable to the
issuance or transfer of such Company Stock have been complied with to
the satisfaction of the Committee. The Committee shall have the right
to condition any Option made to any Participant hereunder on such
Participant's undertaking in writing to comply with such restrictions
on his subsequent disposition of such shares of Company Stock as the
Committee shall deem necessary or advisable as a result of any
applicable law, regulation or official interpretation thereof, and
certificates representing such shares may be legended to reflect any
such restrictions.
(b) COMPLIANCE WITH RULE 16B-3. It is the intent of the
Company that this Plan comply in all respects with Rule 16b-3 in
connection with any Option to a person who is subject to Section 16 of
the Exchange Act. Accordingly, if any provision of this Plan or any
Option does not comply with the requirements of Rule 16b-3 as then
applicable to any such person, such provision shall be construed or
deemed amended to the extent necessary to conform to such requirements
with respect to such person.
14. HEADINGS
Section headings are for reference only. In the event of a conflict
between a title and the content of a Section, the content of the Section shall
control.
15. EFFECTIVE DATE
This Plan became effective as of February 3, 1992, and was approved by
the Company's sole stockholder. The Plan, as amended and restated effective
February 4, 1993, shall be effective upon stockholder approval of the amended
and restated Plan at the 1993 Annual Meeting of Stockholders. If the amended
and restated Plan is not approved at the 1993 Annual Meeting of Stockholders,
then the Plan shall be reinstated in the form in effect immediately prior to
this amendment and restatement, and no Director Options shall be granted
hereunder.
16. MISCELLANEOUS
(a) SUBSTITUTE OPTIONS. The Committee may grant an
Option to an employee of another corporation who becomes a Participant
by reason of a corporate merger, consolidation, acquisition of stock
or property, reorganization or liquidation involving the Company or
any of its subsidiaries in substitution for a stock option granted by
such corporation ("Substituted Stock Options"). The terms and
conditions of the substitute Option may vary from the terms and
conditions required by the plan and from those of the Substituted
Stock Option. The Committee shall prescribe the provisions of the
substitute Options.
<PAGE> 8
(b) COMPLIANCE WITH LAW. The Plan, the exercise of
Options, and the obligations of the Company to issue or transfer
shares of Company Stock under Options shall be subject to all
applicable laws and to approvals by a governmental or regulatory
agency as may be required. The Committee may revoke any Option if it
is contrary to law or modify any Option to bring it into compliance
with any valid and mandatory government regulation. The Committee may
also adopt rules regarding the withholding of taxes on payments to
Optionees. The Committee may, in its sole discretion, agree to limit
its authority under this Section.
(c) OWNERSHIP OF STOCK. An Optionee or Successor
Optionee shall have no rights as a shareholder with respect to any
shares of Company Stock covered by an Option until the shares are
issued or transferred to the Optionee or Successor Optionee on the
stock transfer records of the Company.
(d) LIMITATION OF LIABILITY. Each member of the
Committee shall be entitled to, in good faith, rely or act upon any
report or other information furnished to him by any officer or other
employee of the Company, the Company's independent certified public
accountants, or any executive compensation consultant or other
professional retained by the Company to assist in the administration
of the Plan. No member of the Committee, nor any officer or employee
of the Company acting on behalf of the Committee, shall be personally
liable for any action, determination, or interpretation taken or made
in good faith with respect to the Plan, and all members of the
Committee and any officer or employee of the Company acting on their
behalf shall, to the extent permitted by law, be fully indemnified and
protected by the Company with respect to any such action,
determination, or interpretation.
(e) GOVERNING LAW. The validity, construction, and
effect of the Plan, any rules and regulations relating to the Plan,
and any Option Letter shall be determined in accordance with the laws
of the State of Delaware, without giving effect to principles of
conflicts of laws, and applicable federal law.
As adopted by the Board of Directors of Living
Centers of America, Inc. on December 3, 1992,
effective as of February 4, 1993.
/s/ JAN E. FARLEY
- ---------------------
Jan E. Farley
Secretary
<PAGE> 9
LIVING CENTERS OF AMERICA, INC.
1992 STOCK OPTION PLAN
(AS AMENDED AND RESTATED EFFECTIVE FEBRUARY 4, 1993)
FIRST AMENDMENT
Living Centers of America, Inc., a Delaware corporation, having
established the Living Centers of America, Inc. 1992 Stock Option Plan, as
amended and restated effective February 4, 1993 (the "Plan"), for the benefit
of its eligible employees, and having reserved the right to amend the Plan
under Section 8 of the Plan, does hereby amend the Plan, effective as of
November 17, 1994, to increase the number of shares under Section 3(a) of the
Plan which have been or may be issued or transferred under the Plan by 600,000.
Terms as used in this Amendment and not defined herein are used herein
as they are defined in the Plan. References in the Plan to "this Plan" (and
indirect references such as "hereof" and "herein") are amended to refer to the
Plan as amended by this Amendment. Except as expressly amended hereby, the
Plan shall remain in full force and effect and is hereby ratified and confirmed
in all respects.
IN WITNESS WHEREOF, Living Centers of America, Inc. has caused these
presents to be executed by its duly authorized officers, in a number of copies,
all of which shall constitute one and the same instrument, which may be
sufficiently evidenced by any executed copy hereof, this 18th day of November,
1994.
LIVING CENTERS OF AMERICA, INC.
By: /s/ EDWARD L. KUNTZ
--------------------------
(SEAL)
<PAGE> 10
SECOND AMENDMENT TO
LIVING CENTERS OF AMERICA, INC.
1992 STOCK OPTION PLAN
AS
AMENDED AND RESTATED EFFECTIVE FEBRUARY 4, 1993
Living Centers of America, Inc., a Delaware corporation, having
established the Living Centers of America, Inc. 1992 Stock Option Plan, As
Amended and Restated Effective February 4, 1993 (the "Plan"), for the benefit
of its eligible employees, and having reserved the right to amend the Plan
under Section 8 of the Plan, does hereby amend the Plan, effective as of
November 17, 1995, and subject to approval by the Company's stockholders, as
follows:
1. The first sentence of Section 3(a) is hereby amended in its
entirety to read as follows:
Subject to the adjustment specified below, the aggregate number of
shares of common stock of the Company ("Company Stock") that has been
or may be issued or transferred under the Plan is 2,000,000 shares.
2. The second sentence of Section 5(a)(ii) of the Plan is hereby
deleted, and the following language shall be substituted in lieu thereof:
On each of the first business days after the 1994 and the 1995 Annual
Meeting of Stockholders of the Company, each nonemployee director of
the Company on such dates were automatically granted a Director Option
to purchase 1,000 shares of Company Stock. On the first day in
December 1995 on which the New York Stock Exchange (the "NYSE") is
open for business and on the first day in December of each calendar
year thereafter on which the NYSE is open for business (the "Annual
Grant Date"), each nonemployee director of the Company who holds a
position as of such date shall automatically be granted a Director
Option to purchase 2,000 shares of Company Stock; provided, however,
that any nonemployee director on any given Annual Grant Date who has
not received an initial grant of a Director Option pursuant to this
Plan to purchase 5,000 shares of Company stock shall instead then
receive such initial Director Option covering 5,000 shares.
Notwithstanding the foregoing, the grant of all Director Options
granted on the first day in December 1995 on which the NYSE is open
for business shall be subject to the approval of the Company's
stockholders at the 1996 Annual Meeting of Stockholders of the
Company, and each such nonemployee director shall have no right to
sell, assign, transfer, pledge or place any encumbrance on such
Director Options granted to such director or the underlying shares
thereof unless and until such approval has been given (but if such
approval is given, such Director Options shall remain subject to all
of the terms of this Plan, including Section 6 hereof).
In the event the foregoing amendments are not approved by the
Company's stockholders at the 1996 Annual Meeting of Stockholders of the
Company, then the provisions of Sections 3(a) and 5(a)(ii) of the Plan as in
effect prior to the foregoing amendments shall remain in full force and effect
and the Director Options that otherwise would have been granted thereunder
shall be granted as if the foregoing amendments shall not have been made. In
addition, the terms of this Second Amendment shall have no effect on any
options granted by the Company prior to the date hereof.
Terms as used in this Second Amendment and not defined herein are used
herein as they are defined in the Plan. References in the Plan to "this Plan"
(and indirect references such as "hereof" and "herein") are amended to refer to
the Plan as amended by this Second Amendment. Except as expressly
<PAGE> 11
amended hereby, the Plan shall remain in full force and effect and is hereby
ratified and confirmed in all respects.
IN WITNESS WHEREOF, Living Centers of America, Inc. has caused this
instrument to be executed by a duly authorized officer effective as of November
17, 1995.
LIVING CENTERS OF AMERICA, INC.
By: /s/ EDWARD L. KUNTZ
--------------------------
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 dated August 7, 1996 pertaining to the 1992 Stock Option Plan of Living
Centers of America, Inc. of our report dated November 28, 1995, with respect to
the consolidated financial statements and schedule of Living Centers of America,
Inc. included in its Annual Report (Form 10-K) for the year ended September 30,
1995, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
August 6, 1996
Houston, Texas
<PAGE> 1
Exhibit 24.1
LIVING CENTERS OF AMERICA, INC.
Power of Attorney
WHEREAS, LIVING CENTERS OF AMERICA, INC. a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement on Form S-8 (the "Registration Statement"),
with any amendment or amendments thereto, as prescribed by the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
promulgated thereunder, together with any and all exhibits and other documents
relating to the Registration Statement, in connection with the registration of
600,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), and the preferred stock purchase rights associated with the
Common Stock, to be issued to employees of the Company pursuant to the
Company's 1992 Stock Option Plan, as amended;
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer, or both, as the case may be, of the Company, does hereby appoint
Edward L. Kuntz and Susan Thomas Whittle, and each of them severally, his true
and lawful attorneys-in-fact and agents with power to act with or without the
others, and with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to execute, deliver and
file the Registration Statement and any and all amendments thereto and all
instruments necessary or incidental in connection therewith and to file the
same with the Commission and to appear before the Commission in connection with
any matter relating thereto. Each of such attorneys-in-fact shall have full
power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done in the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of such attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 18th day of July, 1996.
/s/ EDWARD L. KUNTZ
--------------------------
Edward L. Kuntz
<PAGE> 1
Exhibit 24.2
LIVING CENTERS OF AMERICA, INC.
Power of Attorney
WHEREAS, LIVING CENTERS OF AMERICA, INC. a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement on Form S-8 (the "Registration Statement"),
with any amendment or amendments thereto, as prescribed by the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
promulgated thereunder, together with any and all exhibits and other documents
relating to the Registration Statement, in connection with the registration of
600,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), and the preferred stock purchase rights associated with the
Common Stock, to be issued to employees of the Company pursuant to the
Company's 1992 Stock Option Plan, as amended;
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer, or both, as the case may be, of the Company, does hereby appoint
Edward L. Kuntz and Susan Thomas Whittle, and each of them severally, his true
and lawful attorneys-in-fact and agents with power to act with or without the
others, and with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to execute, deliver and
file the Registration Statement and any and all amendments thereto and all
instruments necessary or incidental in connection therewith and to file the
same with the Commission and to appear before the Commission in connection with
any matter relating thereto. Each of such attorneys-in-fact shall have full
power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done in the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of such attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 18th day of July, 1996.
/s/ LEROY D. WILLIAMS
--------------------------
Leroy D. Williams
<PAGE> 1
Exhibit 24.3
LIVING CENTERS OF AMERICA, INC.
Power of Attorney
WHEREAS, LIVING CENTERS OF AMERICA, INC. a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement on Form S-8 (the "Registration Statement"),
with any amendment or amendments thereto, as prescribed by the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
promulgated thereunder, together with any and all exhibits and other documents
relating to the Registration Statement, in connection with the registration of
600,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), and the preferred stock purchase rights associated with the
Common Stock, to be issued to employees of the Company pursuant to the
Company's 1992 Stock Option Plan, as amended;
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer, or both, as the case may be, of the Company, does hereby appoint
Edward L. Kuntz and Susan Thomas Whittle, and each of them severally, his true
and lawful attorneys-in-fact and agents with power to act with or without the
others, and with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to execute, deliver and
file the Registration Statement and any and all amendments thereto and all
instruments necessary or incidental in connection therewith and to file the
same with the Commission and to appear before the Commission in connection with
any matter relating thereto. Each of such attorneys-in-fact shall have full
power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done in the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of such attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 18th day of July, 1996.
/s/ ROGER J. BULGER
---------------------------
Roger J. Bulger, M.D., FACP
<PAGE> 1
Exhibit 24.4
LIVING CENTERS OF AMERICA, INC.
Power of Attorney
WHEREAS, LIVING CENTERS OF AMERICA, INC. a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement on Form S-8 (the "Registration Statement"),
with any amendment or amendments thereto, as prescribed by the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
promulgated thereunder, together with any and all exhibits and other documents
relating to the Registration Statement, in connection with the registration of
600,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), and the preferred stock purchase rights associated with the
Common Stock, to be issued to employees of the Company pursuant to the
Company's 1992 Stock Option Plan, as amended;
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer, or both, as the case may be, of the Company, does hereby appoint
Edward L. Kuntz and Susan Thomas Whittle, and each of them severally, his true
and lawful attorneys-in-fact and agents with power to act with or without the
others, and with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to execute, deliver and
file the Registration Statement and any and all amendments thereto and all
instruments necessary or incidental in connection therewith and to file the
same with the Commission and to appear before the Commission in connection with
any matter relating thereto. Each of such attorneys-in-fact shall have full
power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done in the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of such attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 18th day of July, 1996.
/s/ EDDY J. ROGERS, JR.
--------------------------
Eddy J. Rogers, Jr.
<PAGE> 1
Exhibit 24.5
LIVING CENTERS OF AMERICA, INC.
Power of Attorney
WHEREAS, LIVING CENTERS OF AMERICA, INC. a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement on Form S-8 (the "Registration Statement"),
with any amendment or amendments thereto, as prescribed by the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
promulgated thereunder, together with any and all exhibits and other documents
relating to the Registration Statement, in connection with the registration of
600,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), and the preferred stock purchase rights associated with the
Common Stock, to be issued to employees of the Company pursuant to the
Company's 1992 Stock Option Plan, as amended;
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer, or both, as the case may be, of the Company, does hereby appoint
Edward L. Kuntz and Susan Thomas Whittle, and each of them severally, his true
and lawful attorneys-in-fact and agents with power to act with or without the
others, and with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to execute, deliver and
file the Registration Statement and any and all amendments thereto and all
instruments necessary or incidental in connection therewith and to file the
same with the Commission and to appear before the Commission in connection with
any matter relating thereto. Each of such attorneys-in-fact shall have full
power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done in the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of such attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 18th day of July, 1996.
/s/ ROBERT H. HURLBUT
--------------------------
Robert H. Hurlbut
<PAGE> 1
Exhibit 24.6
LIVING CENTERS OF AMERICA, INC.
Power of Attorney
WHEREAS, LIVING CENTERS OF AMERICA, INC. a Delaware corporation (the
"Company"), intends to file with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement on Form S-8 (the "Registration Statement"),
with any amendment or amendments thereto, as prescribed by the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
promulgated thereunder, together with any and all exhibits and other documents
relating to the Registration Statement, in connection with the registration of
600,000 shares of the Company's common stock, par value $.01 per share (the
"Common Stock"), and the preferred stock purchase rights associated with the
Common Stock, to be issued to employees of the Company pursuant to the
Company's 1992 Stock Option Plan, as amended;
NOW, THEREFORE, the undersigned, in his capacity as a director or
officer, or both, as the case may be, of the Company, does hereby appoint
Edward L. Kuntz and Susan Thomas Whittle, and each of them severally, his true
and lawful attorneys-in-fact and agents with power to act with or without the
others, and with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to execute, deliver and
file the Registration Statement and any and all amendments thereto and all
instruments necessary or incidental in connection therewith and to file the
same with the Commission and to appear before the Commission in connection with
any matter relating thereto. Each of such attorneys-in-fact shall have full
power and authority to do and perform in the name and on behalf of the
undersigned, in any and all capacities, every act whatsoever necessary or
desirable to be done in the premises, as fully and to all intents and purposes
as the undersigned might or could do in person, the undersigned hereby
ratifying and approving the acts of such attorneys-in-fact and each of them.
IN WITNESS WHEREOF, the undersigned has executed this power of
attorney this 18th day of July, 1996.
/s/ DONALD C. BEAVER
--------------------------
Donald C. Beaver
