As filed with the Securities and Exchange Commission on December 6, 1996
Registration No. 33-_____
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________________
THC HomeCare, Inc.
(Exact name of registrant as specified in its charter)
_________________________
Utah
(State or other
jurisdiction
of incorporation or
organization)
48-1092064
(I.R.S. Employer
Identification No.
215 South State Street, Suite 535
Salt Lake City, Utah 84111
(801) 532-7525
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
1996 Director's Plan and 1996 Stock Option Plan
________________________________
William V. Trowbridge, Vice President Finance
THC HomeCare, Inc.
215 South State Street, Suite 535
Salt Lake City, Utah 84111
(801) 532-7525
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Kevin R. Pinegar, Esq.
Durham, Evans, Jones & Pinegar, P.C.
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
(801) 538-2424
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each class Proposed maximum Proposed maxi- Amount of
of securities to be Amount to be offering price per mum aggregate registration
registered registered(1) unit offering price fee(3)
<S> <C> <C> <C>
Common Shares, 900,000 shares $ .275 $247,500(2) $ 81.68
par value $.0001
per share, subject
to stock options
granted under
plans
</TABLE>
(1) This Registration Statement also covers an indeterminate number of Common
Shares that may be issuable by reason of stock splits, stock dividends or
similar transactions in accordance with Rule 416 under the Securities Act of
1933, as amended.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, based upon the
average of the high and low prices of the Common Shares as reported on NASDAQ
on October 30 6, 1996 (within 5 business days prior to the date of filing the
registration statement).
(3) 1/33 of 1 percent of the maximum aggregate offering price, pursuant to
Section 6(b) of the Securities Act of 1933.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by Rule
428(b)(1). Such documents are not required to be and are not filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.Incorporation of Documents by Reference.
The following documents filed with the Commission by the Registrant are
incorporated herein by reference:
(a)The Company's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1995;
(b)Other reports of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (a) above:
The Company's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, June 30, 1996 and September 30, 1996.
(c)Description of the class of securities of the Company to be offered,
(incorporated by reference to the Registration Statement of the Company
previously filed, pursuant to which the class of Common Stock of the Company
was registered under the Securities Exchange Act of 1934, as amended).
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4.Description of Securities.
Not applicable.
Item 5.Interests of Named Experts and Counsel.
Not Applicable.
Item 6.Indemnification of Directors and Officers.
Section 16-10a-901, et.seq. of the Revised Business Corporation Act of
Utah, together with the Bylaws of the Company, provide for indemnification of
the Company's directors, officers, employees, fiduciaries or agents, subject to
the Company's determination in each instance that indemnification is in
accordance with the standards set forth in the Revised Business Corporation Act
and in the Bylaws. The Company may purchase and maintain liability insurance on
behalf of a person who is or was a director, officer, employee, fiduciary, or
agent of the Company against liability asserted against or incurred by him or
her in that capacity or arising from his or her status as a director, officer,
employee, fiduciary, or agent, whether or not the Company would have power to
indemnify him or her against the same liability under the provisions of the
Bylaws.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Act and is therefore unenforceable.
Item 7.Exemption from Registration Claimed.
Not applicable.
Item 8.Exhibits.
4(a) -- Stock Option Plan of 1996
4(b) -- Directors Stock Option Plan of 1996
4(c) -- Form of Stock Option Agreement for the purchase of Common Stock of
the Company, used in connection with the Directors' Plan.
5 -- Opinion of Durham, Evans, Jones & Pinegar, P.C. regarding validity of
Common Stock issuable under the Stock Option Plans
23(a) -- Consent of Durham, Evans, Jones & Pinegar, P.C. (included in the
opinions filed as Exhibit 5 to this Registration Statement).
Item 9.Undertakings.
(a)The undersigned Company hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2)That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3)To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b)The undersigned Company hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(c)Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all 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 Salt Lake City, State of Utah, on this 30th day of
October, 1996.
THC HomeCare, Inc.
By /s/ Thomas O. Bushell
President and CEO
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Thomas O. Bushell, his attorney-in-fact,
with the power of substitution, for him and in any and all capacities, to sign
any and all amendments to this Registration Statement (including post effective
amendments), and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that said attorney-in-fact or his substitute or
substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated and on the dates indicated.
Signature Title Date
/s/ Thomas O. Bushell CEO, President December 5, 1996
Director
/s/ Charles McLaughlin Chairman/Director December 5, 1996
EXHIBIT INDEX
Exhibits
4(a) -- 1996 Directors' Stock Option Plan
4(b) -- 1996 Stock Option Plan
4(c) -- Form of Stock Option Agreement for the purchase of Common
Stock of the Company, used in connection with the
Directors' Plan.
5 -- Opinion of Durham, Evans, Jones & Pinegar, P.C. regarding
validity of Common Stock issuable under the Stock Option
Plan.
23(a)-- Consent of Durham, Evans, Jones & Pinegar, P.C. (included
in the opinion filed as Exhibit 5 to this Registration
Statement).
Exhibit 4(a)
THC HomeCare, Inc.
a Utah corporation
1996 Directors' Stock Option Plan
The purpose of this 1996 Directors' Stock Option Plan (the "Plan") is to
promote the long-term success of THC HomeCare, Inc.(the "Company") by creating a
long-term mutuality of interests between the Directors and the shareholders of
the Company, to provide an incentive to the Directors to remain with the Company
and to provide a means through which the Company may attract able persons to
serve as Directors of the Company.
I.Administration
The Plan shall be administered by the Board of Directors or by a
Committee consisting of two or more Directors appointed by the Board of
Directors of the Company (the "Board"). The Committee shall keep records of
action taken at its meetings. A majority of the Committee shall constitute a
quorum at any meeting, and the acts of a majority of the members present at any
meeting at which a quorum is present or acts approved in writing by all the
members of the Committee shall be the acts of the Committee. The Committee
shall interpret the Plan and prescribe such rules, regulations and procedures in
connection with the operations of the Plan as it shall deem to be necessary and
advisable for the administration of the Plan consistent with the purposes of the
Plan. All questions of interpretation and application of the Plan or as to "Non
statutory Stock Options" and their related alternate stock appreciation rights
("Alternate Rights") granted under the Plan (hereinafter collectively referred
to as "Options"), shall be subject to the determination of the Board, which
shall be final and binding. Awards under this Plan which do not have a minimum
six-month vesting term and which prohibit the transfer or disposition of the
underlying securities for a minimum of six months will be subject to approval of
the Board or to approval by the shareholders of the Company, in the latter case,
by vote taken within 12 months of the date of the grant in question.
1.Shares Available Under the Plan
Except as may be adjusted as provided elsewhere herein, the shares of
stock which may be issued upon exercise of Options under the Plan shall be
authorized and unissued or treasury shares of Common Stock of the Company
("Common Stock"). The number of shares of Common Stock the Company shall
reserve for issuance upon exercise of Options to be granted from time to time
under the Plan, shall not exceed in the aggregate 300,000 shares of Common
Stock. In the absence of an effective registration statement under the
Securities Act of 1933 (the "Act"), all Options granted and shares of Common
Stock subject to their exercise will be restricted as to subsequent resale or
transfer, pursuant to the provisions of Rule 144, promulgated under the Act;
provided, however, that the Company shall as soon as practicable, file a
registration statement covering the shares of Common Stock reserved for issuance
under the Plan on Form S-8, if such form is available for use by the Company.
2.Eligibility
Only Directors of the Company are eligible to receive grants of Options
under the Plan.
A.Upon adoption of the Plan by the Board of Directors, each
current member of the Board will automatically and without further action by the
Board or the Committee be granted the following Options, together with related
Alternative Rights:
Options to purchase 50,000 shares of Common Stock, all of which
Options vest immediately upon the date of grant.
B. In addition to the Options granted to current Directors of the
Company upon adoption of Plan, any new member of the Board of Directors
appointed or elected after adoption of the Plan, automatically and without
further action by the Board or the Committee, and to the extent shares are
available for issuance under the Plan, shall be granted Options to purchase
50,000 shares of Common Stock of the Company on the day following the date of
appointment of such person to the Board. Such Options, if granted, shall vest
on January 1 of each year, following the end of the calendar year during which
that Optionee became a Director.
C. A Director may decline acceptance of the grant of Options
hereunder by notifying the Committee of such decision.
D. The Board may make such further grants hereunder as it may from
time to time determine, consistent with the terms of this Plan.
3. Effective Date and Term of Plan
The Plan shall become effective as of the 5th day of October 1996, the
date the Plan is effectively adopted by a majority of the Board (the "Effective
Date").
No awards shall be granted under the Plan after or on the 5th day of
October 2006, which date is ten (10) years after the Effective Date (the "Plan
Termination Date"). Provided, however, that the Plan and all awards made under
the Plan prior to such Plan Termination Date shall remain in effect until such
awards have been satisfied or terminated in accordance with the Plan and the
terms of such awards.
4. Terms and Conditions of Nonstatutory Stock Options
Nonstatutory Stock Options granted under the Plan shall be subject to the
following terms and conditions:
A. The grant of a Nonstatutory Stock Option shall be evidenced by
a written Stock Option Agreement, executed by the Company and the Director who
is the holder of the Option (the "Optionee"), stating the number of shares of
Common Stock subject to the Nonstatutory Stock Option evidenced thereby, and in
such form as the Committee may from time to time determine.
B. The purchase price at which each Nonstatutory Stock Option may
be exercised (the "Option Price") shall be one hundred percent (100%) of the
fair market value per share of the Common Stock covered by the Nonstatutory
Stock Option on the date of grant as provided below.
C. Subject to the vesting schedule under Paragraph 3, above, each
Nonstatutory Stock Option shall be fully exercisable at any time beginning six
months, and within ten (10) years, after the date of grant thereof (the "Option
Term"). No Nonstatutory Stock Option shall be exercisable after the expiration
of its Option Term. A Nonstatutory Stock Option to the extent exercisable at
any time may be exercised in whole or in part.
D. Each Nonstatutory Stock Option Agreement shall set forth the
procedure governing the exercise of the Nonstatutory Stock Option granted
thereunder, and shall provide that, upon such exercise in respect of any shares
of Common Stock subject thereto, the Optionee shall pay to the Company, in full,
the Option Price for such shares with cash or with Common Stock previously owned
by Optionee having a fair market value on the date of exercise of the
Nonstatutory Stock Option, determined as provided below, equal to the Option
Price for the shares being purchased. Delivery of the shares may be
accomplished through the effective transfer to the Company of shares held by a
broker or other agent. The Company will also cooperate with any person
exercising a Nonstatutory Stock Option who participates in a cashless exercise
program of a broker or other agent under which all or part of the shares
received upon exercise of the Nonstatutory Stock Option are sold through the
broker or other agent or under which the broker or other agent makes a loan to
such person. Notwithstanding the foregoing, the exercise of the Nonstatutory
Stock Option shall not be deemed to occur and no shares of stock will be issued
by the Company upon exercise of the Nonstatutory Stock Option until the Company
has received payment of the Option Price in full. The date of exercise of a Non
statutory Stock Option shall be determined under procedures established by the
Committee as provided above. Payment of the Option Price with shares shall not
increase the number of shares of stock which may be issued under the Plan.
E. If an Optionee ceases to be a Director of the Company for any
reason, any outstanding Nonstatutory Stock Options held by the Director shall be
exercisable according to the following provisions:
(1) If the Optionee ceases to be a Director for any reason
other than resignation, removal for cause or death, any outstanding
Nonstatutory Stock Option held by the Optionee at such time shall be
exercisable by the Optionee (but only if exercisable immediately prior to
ceasing to be a Director) at any time prior to the expiration date of
such Nonstatutory Stock Option or within three years after the date the
grantee ceases to be a Director, whichever is the shorter period;
(2) If during his term of office as a Director an Optionee
resigns from the Board or is removed from office for cause, any
outstanding Nonstatutory Stock Option held by the Optionee which is not
exercisable by him immediately prior to resignation or removal shall
terminate as of the date of resignation or removal, and any outstanding
Nonstatutory Stock Option held by the Optionee which is exercisable
immediately prior to resignation or removal shall be exercisable at any
time prior to the expiration date of such Nonstatutory Stock Option or
within six months after the date of resignation or removal, whichever
period is shorter;
(3) Following the death of an Optionee during service as a
Director of the Company, any outstanding Nonstatutory Stock Option held
by him at the time of death (whether or not exercisable by the grantee
immediately prior to death) shall be exercisable by the person entitled
to do so under the Will of the Optionee, or, if the Optionee shall fail
to make testamentary disposition of the Nonstatutory Stock Option or
shall die intestate, by the legal representative of the Optionee at any
time prior to the expiration date of such Nonstatutory Stock Option or
within three years after the date of death of Optionee, whichever is the
shorter period;
(4) Following the death of an Optionee after ceasing to be a
Director and during a period when a Nonstatutory Stock Option is
exercisable under (2) above, the Nonstatutory Stock Option shall be
exercisable by such person entitled to do so under the will of the
Optionee or by such legal representative at any time prior to the
expiration date of the Nonstatutory Stock Option or within one year after
the date of death, whichever is the shorter period;
(5) Following the death of an Optionee after ceasing to be a
Director and during a period when a Nonstatutory Stock Option is
exercisable under clause (1) above, the Nonstatutory Stock Option shall
be exercisable by such person entitled to do so under the Will of the
Optionee or by such legal representative at any time during the shorter
of the following two periods: (i) until the expiration date of the
Nonstatutory Stock Option or (ii) until three years after the grantee
ceased being a Director or one year after the date of death of the
Optionee (whichever is longer).
A Nonstatutory Stock Option held by an Optionee who has ceased to be a
Director of the Company shall terminate upon the expiration of the applicable
exercise period, if any, specified in this Section 5E.
F. "FAIR MARKET VALUE" per share in respect of any share of Common
Stock as of any particular date shall mean (i) the closing sales price per share
of Common Stock reflected on a national securities exchange for the last
preceding date on which there was a sale of such Common Stock on such exchange;
or (ii) if the shares of Common Stock are then traded on an over-the-counter
market, the average of the closing bid and asked prices for the shares of Common
Stock in such over-the-counter market for the last preceding date on which there
was a sale of such Common Stock in such market; or (iii) in case no reported
sale takes place, the average of the closing bid and asked prices on the
National Association of Securities Dealers' Automated Quotations System
("NASDAQ") or any comparable system, or if the shares of Common Stock are not
listed on NASDAQ or comparable system, the closing sale price or, in case no
reported sale takes place, the average of the closing bid and asked prices, as
furnished by any member of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose; or (iv) if the
shares of Common Stock are not then listed on a national securities exchange or
traded in an over-the-counter market, such value as the Committee in its
discretion may determine in any such other manner as the Committee may deem
appropriate. In no event shall the Fair Market Value of any share of Common
Stock be less than its par value.
5. Alternate Stock Appreciation Rights
A. Concurrently with the award of Nonstatutory Stock Options to
purchase one or more shares of Common Stock, the Board or Committee shall,
subject to the provisions of the Plan, award to the Optionee with respect to
each share of Common Stock, a related Alternate Right, permitting the Optionee
to be paid the appreciation on the Nonstatutory Stock Option in Common Stock in
lieu of exercising the Nonstatutory Stock Option.
B. Alternate Rights shall be evidenced by written agreements in
such form as the Committee may from time to time determine.
C. An Optionee who has been granted Alternate Rights may, from
time to time, in lieu of the exercise of an equal number of Nonstatutory Stock
Options, elect to exercise one or more Alternate Rights and thereby become
entitled to receive from the Company payment in Common Stock the number of
shares determined pursuant to Subsections D and E. Alternate Rights shall be
exercisable only to the same extent and subject to the same conditions and
within the same Option Terms as the Nonstatutory Stock Options related thereto
are exercisable, as provided in this Plan.
D. The amount of payment to which an Optionee shall be entitled
upon the exercise of each Alternate Right shall be equal to 100% of the amount,
if any, by which the Fair Market Value of a share of Common Stock on the
exercise date exceeds the Fair Market Value of a share of Common Stock on the
date the Nonstatutory Stock Option related to said Alternate Right was granted
or became effective, as the case may be.
E. Upon exercise of Alternate Rights, the Company shall pay
Optionee the amount of payment determined pursuant to Subsection D in Common
Stock. The number of shares to be paid shall be determined by dividing the
amount of payment determined pursuant to Subsection D by the Fair Market Value
of a share of Common Stock on the exercise date of such Alternate Rights. As
soon as practicable after exercise, the Company shall deliver to the Optionee a
certificate or certificates for such shares of Common Stock. All such shares
shall be issued with the rights and restrictions specified in this Plan for
shares issued pursuant to the exercise of Nonstatutory Stock Options.
F. The exercise of any Alternate Rights shall cancel an equal
number of Nonstatutory Stock Options related to said Alternate Rights.
G. Upon termination of the Optionee's employment as a Director of
the Company by reason of permanent disability or retirement (as each is
determined by the Committee), the Optionee may, within six months from the date
of such termination, exercise any Alternate Rights to the extend such Alternate
Rights are exercisable during such six-month period.
H. Except as provided in Subsection G, all Alternate Rights shall
terminate three months after the date of termination of the Optionee's
employment as a Director or upon the death of the Optionee.
6. Restrictions
A. Each award under the Plan shall be subject to the requirement
that, if at any time the Committee shall determine that (i) the listing,
registration or qualification of the shares of Common Stock subject or related
thereto upon any securities exchange or under any state or Federal law, or (ii)
the consent or approval of any government regulatory body, or (iii) an agreement
by the grantee of an award with respect to the disposition of shares of Common
Stock, is necessary or desirable as a condition of, or in connection with, the
granting of such award or the issue or purchase of shares of Common Stock
thereunder, such award may not be exercised or consummated in whole or in part
unless and until such listing, registration, qualification, consent, approval or
agreement shall have been effected or obtained free of any conditions not
acceptable to the Committee. No award under the Plan shall be assignable or
transferable by the recipient thereof, except by Will or by the laws of descent
and distribution or pursuant to the terms of a qualified domestic relations
order as defined in the U.S. Internal Revenue Code, as amended, or Title I of
the Employee Retirement Income Security Act, or the rules thereunder. During
the life of the recipient, such award shall be exercisable only by such person
or by such person's guardian or legal representative. The recipient of an award
shall not exercise the Options for at least six months after date of grant of
award.
B. Subject to the foregoing provisions of Section 5 and the other
provisions of this Plan, any Option granted under the Plan shall be subject to
such restrictions and other terms and conditions, if any, as shall be
determined, in its discretion, by the Committee and set forth in the agreement
under which the Option is granted, or an amendment thereto; except that in no
event, notwithstanding anything in this Plan to the contrary, shall the
Committee or the Board have any power or authority which would cause the Plan to
fail to be a plan described in Rule 16b-3 of the Securities Exchange Act, as
amended or any successor Rule.
7. Withholding Taxes
Whenever the Company proposes or is required to issue or transfer shares
of Common Stock under the Plan, the Company shall, to the extent permitted or
required by law, have the right to require the grantee, as a condition of
exercise of its Options to remit to the Company no later than the date of
issuance or exercise, or make arrangements satisfactory to the Board regarding
payment of, any amount sufficient to satisfy any federal, state and/or local
taxes of any kind, including, but not limited to, withholding tax requirements
prior to the delivery of any certificate or certificates for such shares. If
the participant fails to pay the amount required by the Board, the Company shall
have the right to withhold such amount from other amounts payable by the Company
to the participant, including but not limited to, salary, fees or benefits,
subject to applicable law. Alternatively, the Board may cause the Company to
issue or transfer such shares of Common Stock net of the number of shares
sufficient to satisfy any such taxes, including, but not limited to, the
withholding tax requirements. For withholding tax purposes, the shares of
Common Stock shall be valued on the date the withholding obligation is incurred.
8. Rights as a Shareholder
The recipient of any award under the Plan shall have no rights as a
shareholder with respect thereto unless and until certificates for shares of
Common Stock are issued to him or her upon exercise of the options.
9. Adjustments
In the event of any change in the outstanding Common Stock by reason of a
stock dividend or distribution, recapitalization, merger, consolidation, split-
up, combination, exchange of shares or the like, the Committee may appropriately
adjust the number of shares of Common Stock which may be issued under the Plan,
the number of shares of Common Stock subject to Options theretofore granted
under the Plan and the Option Price of Nonstatutory Stock Options theretofore
granted under the Plan.
10. Effect of Certain Changes
Notwithstanding Section 10 above, the following adjustments shall be made
upon the occurrence of certain events or changes to the Company or its
capitalization:
A. If there is any change in the number of shares of Common Stock
through the declaration of stock dividends, or through recapitalization
resulting in stock splits, or combinations or exchanges of such shares, the
number of shares of Common Stock available for awards under the Plan, the number
of such shares covered by the outstanding Options and the price per share of
such Options shall be proportionately adjusted by the Committee to reflect any
increase or decrease in the number of issued shares of Common Stock; provided,
however, that any fractional shares resulting from such adjustment shall be
eliminated.
B. In the event of the proposed dissolution or liquidation of the
Company, in the event of any corporate separation or division, including, but
not limited to split-up, split-off or spin-off, or in the event of a merger,
consolidation or other reorganization of the Corporation with another
corporation, the Committee may provide that the holder of each Option then
exercisable shall have the right to exercise such Option (at its then Option
Price) solely for the kind and amount of shares of stock and other securities,
property, cash or any combination thereof receivable upon such dissolution,
liquidation, or corporate separation or division, or merger, consolidation or
other reorganization by a holder of the number of shares of Common Stock for
which such Option might have been exercised immediately prior to such
dissolution, liquidation, or corporate separation or division, or merger,
consolidation or other reorganization; or the Committee may provide, in the
alternative, that each Option granted under the Plan shall terminate as of a
date to be fixed by the Committee; provided, however, that not less than 90
- -days' written notice of the date so fixed shall be given to each Optionee, who
shall have the right, during the period of 90 days preceding such termination,
to exercise the Options as to all or any part of the shares of Common Stock
covered thereby, including shares as to which such Options would not otherwise
be exercisable; provided, further, that failure to provide such notice shall not
invalidate or affect the action with respect to which such notice was required.
C. If while unexercised Options remain outstanding under the Plan,
the stockholders of the Corporation approve a definitive agreement to merge,
consolidate or otherwise reorganize the Company with or into another corporation
or to sell or otherwise dispose of all or substantially all of its assets, or
adopt a plan of liquidation (each, a "Disposition Transaction"), then the
Committee may: (i) make an appropriate adjustment to the number and class of
shares available for awards under the Plan, and to the amount and kind of shares
or other securities or property (including cash) receivable upon exercise of any
outstanding options after the effective date of such transaction, and the price
thereof, or, in lieu of such adjustment, provide for the cancellation of all
options outstanding at or prior to the effective date of such transaction; (ii)
provide that exercisability of all Options shall be accelerated, whether or not
otherwise exercisable; or (iii) in its discretion, permit Optionees to surrender
outstanding options for cancellation.
D. Paragraphs (B) and (C) of this Section shall not apply to a
merger, consolidation or other reorganization in which the Company is the
surviving corporation and shares of Common Stock are not converted into or
exchanged for stock, securities of any other corporation, cash or any other
thing of value. Notwithstanding the preceding sentence, in case of any
consolidation, merger or other reorganization of another corporation into the
Company in which the Company is the surviving corporation and in which there is
a reclassification or change (including a change to the right to receive cash or
other property) of the shares of Common Stock (other than a change in par value,
or from par value to no par value, or as a result of a subdivision or
combination, but including any change in such shares into two or more classes or
series of shares), the Committee may provide that the holder of each Option then
exercisable shall have the right to exercise such Option solely for the kind and
amount of shares of stock and other securities (including those of any new
direct or indirect parent of the Company), property, cash or any combination
thereof receivable upon such reclassification, change, consolidation or merger
by the holder of the number of shares of Common Stock for which such Option
might have been exercised.
E. In the event of a change in the Common Stock of the Company as
presently constituted which is limited to a change of all of its authorized
shares with par value into the same number of shares with a different par value
or without par value, the shares resulting from any such change shall be deemed
to be the Common Stock within the meaning of the Plan.
F. To the extent that the foregoing adjustments relate to stock or
securities of the Company, such adjustments shall be made by the Committee,
whose determination in that respect shall be final, binding and conclusive.
G. Except as hereinbefore expressly provided in this Section, the
Optionee shall have no rights by reason of any subdivision or consolidation of
shares of stock or any class or the payment of any stock dividend or any other
increase or decrease in the number of shares of stock of any class or by reason
of any dissolution, liquidation, merger, consolidation or other reorganization
or spin-off of assets or stock of another corporation; and any issue by the
Company of shares of stock of any class shall not affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of shares of
Common Stock subject to the Option. The grant of an Option pursuant to the Plan
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structures or to merge or to consolidate or to dissolve, liquidate or
sell, or transfer all or part of its business or assets.
11. Amendment of the Plan
A. The Board may, without further action by the shareholders and
without receiving further consideration from the participants, amend this Plan
or condition or modify awards under this Plan in response to changes in
securities, tax or other laws or rules, regulations or regulatory
interpretations thereof applicable to this Plan or to comply with stock exchange
rules or requirements. Provided, however, that no such amendment pursuant to
this Section 10 shall circumvent the provisions of the last sentence of
Paragraph 1, above or otherwise disqualify the Plan or awards made under the
Plan for exemption under Rule 16b-3 of the Securities Exchange Act or any
successor Rule.
B. The Committee may at any time and from time to time terminate
or modify or amend the Plan in any respect. The termination or any modification
or amendment of the Plan shall not without the consent of a participant, affect
his other rights under an award previously granted to him or her.
C. Notwithstanding anything contained in the preceding paragraph
or any other provision of the Plan or any Nonstatutory Stock Option agreement,
the Board shall have the power to amend the Plan in any manner deemed necessary
or advisable for Nonstatutory Stock Options granted under the Plan to qualify
for the exemption provided by Rule 16b-3 (or any successor Rule relating to
exemption from Section 16(b) of the Securities Exchange Act), and any such
amendment shall, to the extent deemed necessary or advisable by the Board, be
applicable to any outstanding Nonstatutory Stock Options theretofore granted
under the Plan notwithstanding any contrary provisions contained in any Non
statutory Stock Option agreement. In the event of any such amendment to the
Plan, the holder of any Nonstatutory Stock Option outstanding under the Plan
shall, upon request of the Committee and as a condition to the exercisability of
such option, execute a conforming amendment in the form prescribed by the
Committee to the Nonstatutory Stock Option agreement within such reasonable time
as the Committee shall specify in such request.
12. Effect of Headings
The Section and Subsection headings contained herein are for convenience
only and shall not affect the construction hereof.
ADOPTED BY RESOLUTION OF THE BOARD OF DIRECTORS, EFFECTIVE THE 5th DAY OF
OCTOBER 1996.
/s/ Charles W. McLaughlin, Chairman
<PAGE>
Exhibit 4(b)
THC HomeCare, Inc.
a Utah corporation
1996 Stock Option Plan
ARTICLE I GENERAL
1.01. Purpose.
The purposes of this Stock Option Plan (the "Plan") are to: (1) closely
associate the interests of the management of THC HomeCare, Inc., a Utah
corporation, and its Subsidiary Corporations and Affiliates (collectively
referred to as the "Company") with the shareholders of the Company by
reinforcing the relationship between participants' rewards and shareholder
gains; (2) provide management with an equity ownership in the Company
commensurate with Company performance, as reflected in increased shareholder
value; (3) maintain competitive compensation levels; and (4) provide an
incentive to management to remain in continuing employment with the Company and
to put forth maximum efforts for the success of its business.
1.02. Administration.
(a) The Board of Directors of THC HomeCare, Inc., (the "Board") shall
administer the Plan. Awards under the Plan may be made by the Board of
Directors or by a Committee consisting of two or more directors to administer
the Plan (the "Committee"), as constituted from time to time. The President may
recommend grants for approval by the Board. If a Committee is appointed, awards
under the Plan will be subject to approval by the Board prior to the grants
being made. Awards may also be made subject to ratification of the vote of a
majority of the shares voted at a meeting at which a quorum is present as
determined by the Bylaws of the Company, provided such meeting is held within 12
months of the date of grant of the award to be so approved and prior to any
exercise of such award. Any Committee member shall also be a member of the
Board. The award may prohibit any disposition of the securities underlying the
award for a minimum of six months from the date of acquisition thereof.
Once appointed, the Committee shall continue to serve until otherwise
directed by the Board. From time to time, the Board may increase or change the
size of the Committee, and appoint new members thereof, remove members (with or
without cause) and appoint new members in substitution therefor, fill vacancies,
however caused, or remove all members of the Committee.
(b) The Board (or its Committee, subject to the foregoing) shall have
the authority without limitation, in its sole discretion, subject to and not
inconsistent with the express provisions of the Plan, and from time to time, to:
(i) administer the Plan and to exercise all the powers and
authorities either specifically granted to it under the Plan or
necessary or advisable in the administration of the Plan;
(ii) designate the employees or classes of employees eligible to
participate in the Plan from among those described in Section 1.03
below;
(iii) grant awards provided in the Plan in such form, amount and
under such terms as the Committee shall determine;
(iv) determine the purchase price of shares of Common Stock covered
by each Option (the "Option Price");
(v) determine the Fair Market Value of Common Stock for purposes
of Options or of determining the appreciation of Common Stock with
respect to Stock Appreciation Rights;
(vi) determine the time or times at which Options and/or Stock
Appreciation Rights shall be granted;
(vii) determine the terms and provisions of the various Option or
Stock Appreciation Rights Agreements (none of which need be identical
or uniform) evidencing Options or Stock Appreciation Rights granted
under the Plan and to impose such limitations, restrictions and
conditions upon any such award as the Committee shall deem
appropriate; and
(viii) interpret the Plan, adopt, amend and rescind rules and
regulations relating to the Plan, and make all other determinations
and take all other action necessary or advisable for the
implementation and administration of the Plan.
The Committee may delegate to one or more of its members or to one or more
Agents such administrative duties as it may deem advisable, and the Committee or
any delegate may employ one or more persons to render advice with respect to any
responsibility the Committee or such person may have under the Plan.
(c) All decisions, determinations and interpretations of the Committee
on all matters relating to the Plan shall be in its sole discretion and shall be
final, binding and conclusive on all Optionees and the Company.
(d) One member of the Committee shall be elected by the Board as
chairman. The Committee shall hold its meetings at such times and places as it
shall deem advisable. All determinations of the Committee shall be made by a
majority of its members either present in person or participating by conference
telephone at a meeting or by written consent. The Committee may appoint a
secretary and make such rules and regulations for the conduct of its business as
it shall deem advisable, and shall keep minutes of its meetings.
(e) No member of the Board or Committee shall be liable for any action
taken or decision or determination made in good faith with respect to any
Option, Stock Appreciation Right, the Plan, or any award thereunder.
1.03. Eligibility for Participation
Participants in the Plan shall be selected by the Committee, and awards under
the Plan, as described in Section 1.04 below, may be granted to officers and key
employees of the Company and to other key individuals such as consultants and
non-employee agents to the Company whom the Committee believes have made or will
make an essential contribution to the Company; provided, however, that Incentive
Stock Options may only be granted to executive officers and other key employees
of the Company who occupy responsible managerial or professional positions, who
have the capability of making a substantial contribution to the success of the
Company, and who agree, in writing, to remain in the employ of, and to render
services to, the Company for a period of at least one (1) year from the date of
the grant of the award. The Committee has the authority to select particular
employees within the eligible group to receive awards under the Plan. In making
this selection and in determining the persons to whom awards under the Plan
shall be granted and the form and amount of awards under the Plan, the Committee
shall consider any factors deemed relevant in connection with accomplishing the
purposes of the Plan, including the duties of the respective persons and the
value of their present and potential services and contributions to the success,
profitability and sound growth of the Company. A person to whom an award has
been granted is sometimes referred to herein as an "Optionee." In no event
shall participants include Directors or any person described in this Section who
also serves as a Director or is otherwise an interested person involved in the
administration of the Plan. Such Directors are participants in a separate
nondiscretionary plan of the Company. An Optionee shall be eligible to receive
more than one Option and/or Stock Appreciation Rights during the term of the
Plan, but only on the terms and subject to the restrictions hereinafter set
forth.
1.04. Types of Awards Under Plan.
Awards under the Plan may be in the form of any one or more of the
following:
(i) "Stock Options" which are nonqualified stock options, the tax
consequences of which are governed by the provisions of Section 83 of the
Internal Revenue Code (the "Code"), as described in Article II;
(ii) "Incentive Stock Options" which are statutory stock
options, the tax consequences of which are governed by Section 422 of the
Code, as described in Article III;
(iii) "Reload Options" which are also nonqualified stock
options, the tax consequences of which are governed by Section 83 of the
Code, as described in Article IV;
(iv) "Alternate Rights" which are Stock Appreciation Rights,
the tax consequences of which are governed by Section 83 of the Code, as
described in Article V; and/or
(v) "Limited Rights" which are also Stock Appreciation Rights, the
tax consequences of which are governed by Section 83 of the Code, as
described in Article VI.
(vi) "Stock Bonuses" which are compensation, the tax
consequences of which are governed by Section 83 of the Code, as
described in Article VII.
(vii) "Cash Bonuses" which are compensation, the tax
consequences of which are governed by Section 61 of the Code, as
described in Article VIII.
1.05. Aggregate Limitation on Awards.
(a) Except as may be adjusted pursuant to Section 9.12(i) below, shares
of stock which may be issued as Stock Bonuses or upon exercise of Options or
Alternate Rights under the Plan shall be authorized and unissued or treasury
shares of Common Stock of the Company ("Common Stock"). The number of shares of
Common Stock the Company shall reserve for issuance as Stock Bonuses or upon
exercise of Options or Alternate Rights to be granted from time to time under
the Plan, and the maximum number of shares of Common Stock which may be issued
under the Plan, shall not exceed in the aggregate 600,000 shares of Common
Stock. In the absence of an effective registration statement under the
Securities Act of 1933 (the "Act"), all Stock Bonuses, Options and Stock
Appreciation Rights granted and shares of Common Stock subject to their exercise
will be restricted as to subsequent resale or transfer, pursuant to the
provisions of Rule 144, promulgated under the Act.
(b) For purposes of calculating the maximum number of shares of Common
Stock which may be issued under the Plan:
(i) all the shares issued (including the shares, if any, withheld for
tax withholding requirements) shall be counted when cash is used as full
payment for shares issued upon exercise of an Option;
(ii) only the shares issued (including the shares, if any, withheld for
tax withholding requirements) as a result of an exercise of Alternate
Rights shall be counted; and
(iii) only the net shares issued (including the shares, if any, withheld
for tax withholding requirements) shall be counted when shares of Common
Stock are used as full or partial payment for shares issued upon exercise
of an Option.
(iv) all shares issued (including the shares, if any, withheld for
tax withholding requirements as Stock Bonuses shall be counted.
(c) In addition to shares of Common Stock actually issued pursuant to
Stock Bonuses or the exercise of Options or Alternate Rights, there shall be
deemed to have been issued a number of shares equal to the number of shares of
Common Stock in respect of which Limited Rights shall have been exercised.
(d) Shares tendered by a participant as payment for shares issued upon
exercise of an Option shall be available for issuance under the Plan. Any
shares of Common Stock subject to an Option or Stock Appreciation Right granted
without a related Option, which for any reason is canceled, terminated,
unexercised or expires in whole or in part shall again be available for issuance
under the Plan, but shares subject to an Option or Alternate Right which are not
issued as a result of the exercise of Limited Rights shall not again be
available for issuance under the Plan.
1.06. Effective Date and Term of Plan.
(a) The Plan shall become effective as of the 5th day of October 1996,
the date the Plan is adopted by the Board (the "Effective Date").
(b) No awards shall be granted under the Plan after or on the 5th of
October, 2006, which date is ten (10) years after the Effective Date (the "Plan
Termination Date"). Provided, however, that the Plan and all awards made under
the Plan prior to such Plan Termination Date shall remain in effect until such
awards have been satisfied or terminated in accordance with the Plan and the
terms of such awards.
ARTICLE II STOCK OPTIONS
2.01. Award of Stock Options.
The Committee may from time to time, and subject to the provisions of the Plan,
and such other terms and conditions as the Committee may prescribe, grant to any
participant in the Plan one or more options to purchase for cash or for Company
shares the number of shares of Common Stock allotted by the Committee ("Stock
Options"). The date a Stock Option is granted shall mean the date selected by
the Committee as of which the Committee allots a specific number of shares to a
participant pursuant to the Plan.
2.02. Stock Option Agreements.
The grant of a Stock Option shall be evidenced by a written Stock Option
Agreement, executed by the Company and the holder of a Stock Option (the
"Optionee"), stating the number of shares of Common Stock subject to the Stock
Option evidenced thereby, and in such form as the Committee may from time to
time determine.
2.03 Stock Option Price.
The Option Price per share of Common Stock deliverable upon the exercise of a
Stock Option shall be 100% of the Fair Market Value of a share of Common Stock
on the date the Stock Option is granted, unless the Committee shall determine,
in its sole discretion, that there are circumstances which reasonably justify
the establishment of a lower Option Price.
2.04. Term and Exercise.
Each Stock Option shall be fully exercisable at any time within the period
beginning not earlier than six months after the date of its grant and, unless a
shorter period is provided by the Committee or by another Section of this Plan,
ending not later than ten years after the date of grant thereof (the "Option
Term"). No Stock Option shall be exercisable after the expiration of its Option
Term.
2.05 Manner of Payment.
Each Stock Option Agreement shall set forth the procedure governing the exercise
of the Stock Option granted thereunder, and shall provide that, upon such
exercise in respect of any shares of Common Stock subject thereto, the Optionee
shall pay to the Company, in full, the Option Price for such shares with cash or
with Common Stock previously owned by Optionee.
2.06 Death of Optionee.
(a) Upon the death of the Optionee, any rights to the extent exercisable
on the date of death may be exercised by the Optionee's estate, or by a person
who acquires the right to exercise such Stock Option by bequest or inheritance
or by reason of the death of the Optionee, provided that such exercise occurs
within both the remaining effective term of the Stock Option and one year after
the Optionee's death.
(b) The provisions of this Section shall apply notwithstanding the fact
that the Optionee's employment may have terminated prior to death, but only to
the extent of any rights exercisable on the date of death.
2.07 Retirement or Disability.
Upon termination of the Optionee's employment by reason of retirement or
permanent disability (as each is determined by the Committee), the Optionee may,
within 36 months from the date of termination, exercise any Stock Options to the
extent such options are exercisable during such 36-month period.
2.08 Termination for Other Reasons.
Except as provided in Sections 2.06, 2.07 or 9.13(f), or except as otherwise
determined by the Committee, all Stock Options shall terminate three months
after the termination of the Optionee's employment.
2.9 Effect of Exercise.
The exercise of any Stock Option shall cancel that number of related Alternate
Rights and/or Limited Rights, if any, which is equal to the number of shares of
Common Stock purchased pursuant to said Stock Option.
ARTICLE III INCENTIVE STOCK OPTIONS
3.01 Award of Incentive Stock Options.
The Committee may, from time to time and subject to the provisions of the Plan
and such other terms and conditions as the Committee may prescribe, grant to any
participant in the Plan one or more "incentive stock options" which are intended
to qualify as such under the provisions of Section 422 of the Code, to purchase
for cash or for Company shares the number of shares of Common Stock allotted by
the Committee ("Incentive Stock Options"). The date an Incentive Stock Option
is granted shall mean the date selected by the Committee as of which the
Committee shall allot a specific number of shares to a participant pursuant to
the Plan.
3.02 Incentive Stock Option Agreements.
The grant of an Incentive Stock Option shall be evidenced by a written Incentive
Stock Option Agreement, executed by the Company and the holder of an Incentive
Stock Option (the "Optionee"), stating the number of shares of Common Stock
subject to the Incentive Stock Option evidenced thereby, and in such form as the
Committee may from time to time determine.
3.03 Incentive Stock Option Price.
Except as provided in Section 3.10 below, the Option Price per share of Common
Stock deliverable upon the exercise of an Incentive Stock Option shall be 100%
of the Fair Market Value of a share of Common Stock on the date the Incentive
Stock Option is granted.
3.04 Term and Exercise.
Except as provided in Section 3.10 below, each Incentive Stock Option shall be
fully exercisable at any time within the period beginning not earlier than six
months after the date of its grant and, unless a shorter period is provided by
the Committee or another Section of this Plan, ending not later than ten years
after the date of grant thereof (the "Option Term"). No Incentive Stock Option
shall be exercisable after the expiration of its Option Term.
3.05 Maximum Amount of Incentive Stock Option Grant.
The aggregate Fair Market Value (determined on the date the Incentive Stock
Option is granted) of Common Stock subject to an Incentive Stock Option granted
to any Optionee by the Committee in any calendar year shall not exceed $100,000.
Multiple Incentive Stock Options may be granted to an Optionee in any calendar
year, which Multiple Incentive Stock Options may in the aggregate exceed such
$100,000 Fair Market Value limitation, so long as each such Incentive Stock
Option within the Multiple Incentive Stock Option award does not exceed such
$100,000 Fair Market Value limitation and so long as no two such Incentive Stock
Options may be exercised by the Optionee in the same calendar year.
3.06 Death of Optionee.
(a) Upon the death of the Optionee, any Incentive Stock Option
exercisable on the date of death may be exercised by the Optionee's estate or by
a person who acquires the right to exercise such Incentive Stock Option by
bequest or inheritance or by reason of the death of the Optionee, provided that
such exercise occurs within both the remaining Option Term of the Incentive
Stock Option and one year after the Optionee's death.
(b) The provisions of this Section shall apply notwithstanding the fact
that the Optionee's employment may have terminated prior to death, but only to
the extent of any Incentive Stock Options exercisable on the date of death.
3.07 Retirement or Disability.
Upon the termination of the Optionee's employment by reason of permanent
disability or retirement (as each is determined by the Committee), the Optionee
may, within 36 months from the date of such termination of employment, exercise
any Incentive Stock Options to the extent such Incentive Stock Options were
exercisable at the date of such termination of employment. Notwithstanding the
foregoing, the tax treatment available pursuant to Section 422 of the Code, upon
the exercise of an Incentive Stock Option will not be available to an Optionee
who exercises any Incentive Stock Options more than (i) 12 months after the date
of termination of employment due to permanent disability or (ii) three months
after the date of termination of employment due to retirement.
3.08 Termination for Other Reasons.
Except as provided in Sections 3.06, 3.07 or 9.13(f), or except as otherwise
determined by the Committee, all Incentive Stock Options shall terminate three
months after the date of termination of the Optionee's employment.
3.09 Applicability of Stock Options Sections and Other Restrictions.
Sections 2.05, Manner of Payment; 2.06, Restrictions on Certain Shares; and
2.10, Effect of Exercise, applicable to Stock Options, shall apply equally to
Incentive Stock Options. Said Sections are incorporated by reference in this
Article III as though fully set forth herein. In addition, the Optionee shall
be prohibited from the sale, exchange, transfer, pledge, hypothecation, gift or
other disposition of the shares of Common Stock underlying the Incentive Stock
Options until the later of either two (2) years after the date of granting the
Incentive Stock Option or one (1) year after the transfer to the Optionee of
such underlying Common Stock after the Optionee's exercise of such Incentive
Stock Options.
3.10 Employee/Ten Percent Shareholders.
In the event the Committee determines to grant an Incentive Stock Option to an
employee who is also a Ten Percent Stockholder, as defined in 9.07(i) below, (i)
the Option Price shall not be less than 110% of the Fair Market Value of the
shares of Common Stock of the Company on the date of grant of such Incentive
Stock Option, and (ii) the exercise period shall not exceed 5 years from the
date of grant of such Incentive Stock Option. Fair Market Value shall be as
defined in 9.07(c) below.
ARTICLE IV RELOAD OPTIONS
4.01. Authorization of Reload Options.
Concurrently with the award of Stock Options and/or the award of Incentive Stock
Options to any participant in the Plan, the Committee may, subject to the
provisions of the Plan, particularly the provisions of Section 9.12 below, and
such other terms and conditions as the Committee may prescribe, authorize reload
options to purchase for cash or for Company shares a number of shares of Common
Stock allotted by the Committee ("Reload Options"). The number of Reload
Options shall equal (i) the number of shares of Common Stock used to exercise
the underlying Stock Options or Incentive Stock Options and (ii) to the extent
authorized by the Committee, the number of shares of Common Stock used to
satisfy any tax withholding requirement incident to the exercise of the
underlying Stock Options or Incentive Stock Options. The grant of a Reload
Option will become effective upon the exercise of underlying Stock Options,
Incentive Stock Options or other Reload Options through the use of shares of
Common Stock held by the Optionee for at least 12 months. Notwithstanding the
fact that the underlying Option may be an Incentive Stock Option, a Reload
Option is not intended to qualify as an "incentive stock option" under Section
422 of the Code.
4.02. Reload Option Amendment.
Each Stock Option Agreement and Incentive Stock Option Agreement shall state
whether the Committee has authorized Reload Options with respect to the
underlying Stock Options and/or Incentive Stock Options. Upon the exercise of
an underlying Stock Option, Incentive Stock Option or other Reload Option, the
Reload Option will be evidenced by an amendment to the underlying Stock Option
Agreement or Incentive Stock Option Agreement.
4.03. Reload Option Price.
The Option Price per share of Common Stock deliverable upon the exercise of a
Reload Option shall be the Fair Market Value of a share of Common Stock on the
date the grant of the Reload Option becomes effective, unless the Committee
shall determine, in its sole discretion, that there are circumstances which
reasonably justify the establishment of a lower Option Price.
4.04. Term and Exercise.
Each Reload Option is fully exercisable not earlier than six months from the
effective date of grant. The term of each Reload Option shall be equal to the
remaining Option Term of the underlying Stock Option and/or Incentive Stock
Option.
4.05. Termination of Employment.
No additional Reload Options shall be granted to Optionees when Stock Options,
Incentive Stock Options and/or Reload Options are exercised pursuant to the
terms of this Plan following termination of the Optionee's employment.
4.06. Applicability of Stock Options Sections.
Sections 2.05, Manner of Payment; 2.06, Restrictions on Certain Shares; 2.07,
Death of Optionee; 2.08, Retirement or Disability; 2.09, Termination for Other
Reasons; and 2.10, Effect of Exercise, applicable to Stock Options, shall apply
equally to Reload Options. Said Sections are incorporated by reference in this
Article IV as though fully set forth herein.
ARTICLE V ALTERNATE STOCK APPRECIATION RIGHTS
5.01. Award of Alternate Rights.
Concurrently with or subsequent to the award of any Option to purchase one or
more shares of Common Stock, the Committee may, subject to the provisions of the
Plan and such other terms and conditions as the Committee may prescribe, award
to the Optionee with respect to each share of Common Stock, a related alternate
stock appreciation right, permitting the Optionee to be paid the appreciation on
the Option in Common Stock in lieu of exercising the Option ("Alternate Right").
5.02. Alternate Rights Agreement.
Alternate Rights shall be evidenced by written agreements in such form as the
Committee may from time to time determine.
5.03. Term and Exercise.
An Optionee who has been granted Alternate Rights may, from time to time, in
lieu of the exercise of an equal number of Options, elect to exercise one or
more Alternate Rights and thereby become entitled to receive from the Company
payment in Common Stock the number of shares determined pursuant to Sections
5.04 and 5.05. Alternate Rights shall be exercisable only to the same extent
and subject to the same conditions and within the same Option Terms as the
Options related thereto are exercisable, as provided in this Plan. The
Committee may, in its discretion, prescribe additional conditions to the
exercise of any Alternate Rights.
5.04. Amount of Payment.
The amount of payment to which an Optionee shall be entitled upon the exercise
of each Alternate Right shall be equal to 100% of the amount, if any, by
which the Fair Market Value of a share of Common Stock on the exercise date
exceeds the Fair Market Value of a share of Common Stock on the date the Option
related to said Alternate Right was granted or became effective, as the case may
be.
5.05. Form of Payment.
Upon exercise of Alternate Rights, the Company shall pay Optionee the amount of
payment determined pursuant to Section 5.04 in Common Stock. The number of
shares to be paid shall be determined by dividing the amount of payment
determined pursuant to Section 5.04 by the Fair Market Value of a share of
Common Stock on the exercise date of such Alternate Rights. As soon as
practicable after exercise, the Company shall deliver to the Optionee a
certificate or certificates for such shares of Common Stock. All such shares
shall be issued with the rights and restrictions specified in Section 2.06.
5.06. Effect of Exercise.
The exercise of any Alternate Rights shall cancel an equal number of Stock
Options, Incentive Stock Options, Reload Options and Limited Rights, if any,
related to said Alternate Rights.
5.07. Retirement or Disability.
Upon termination of the Optionee's employment (including employment as a
director of the Company after an Optionee terminates employment as an officer or
key employee of the Company) by reason of permanent disability or retirement (as
each is determined by the Committee), the Optionee may, within three years from
the date of such termination, exercise any Alternate Rights to the extent such
Alternate Rights are exercisable during such three year period.
5.08. Death of Optionee or Termination for Other Reasons.
Except as provided in Section 5.07 or 9.13(f), or except as otherwise determined
by the Committee, all Alternate Rights shall terminate three months after the
date of termination of the Optionee's employment or one year after the death of
the Optionee.
ARTICLE VI LIMITED RIGHTS
6.01. Award of Limited Rights.
Concurrently with or subsequent to the award of an Option or Alternate Right,
the Committee may, subject to the provisions of the Plan and such other terms
and conditions as the Committee may prescribe, award to the Optionee with
respect to each share of Common Stock underlying such Option or Alternate Right,
a related limited right permitting the Optionee, during a specified limited time
period, to be paid the appreciation on the Option in cash in lieu of exercising
the Option ("Limited Right").
6.02. Limited Rights Agreement.
Limited Rights granted under the Plan shall be evidenced by written agreements
in such form as the Committee may from time to time determine.
6.03. Term and Exercise.
An Optionee who has been granted Limited Rights may, from time to time, in lieu
of the exercise of an equal number of Options and Alternate Rights related
thereto, elect to exercise one or more Limited Rights and thereby become
entitled to receive from the Company payment in cash the amount determined
pursuant to Sections 6.04 and 6.05. Limited Rights shall be exercisable only to
the same extent and subject to the same conditions and within the same Option
Terms as the Options or Alternate Rights related thereto are exercisable, as
provided in this Plan. The Committee may, in its discretion, prescribe
additional conditions to the exercise of any Limited Rights.
Notwithstanding anything above to the contrary, Limited Rights are exercisable
in full for a period of seven months following the date of a Change in Control
of the Company, (the "Exercise Period"); provided, however, that Limited Rights
may not be exercised under any circumstances until the expiration of the six-
month period following the date of grant.
As used in the Plan, a "Change of Control" shall be deemed to have occurred if
(a) individuals who are currently directors of THC HomeCare, Inc. immediately
prior to a Control Transaction shall cease, within one year of such Control
Transaction, to constitute a majority of the Board (or of the Board of Directors
of any successor to THC HomeCare, Inc. or to all or substantially all of its
assets), or any entity, person or Group other than THC HomeCare, Inc. or a
Subsidiary Corporation of THC HomeCare, Inc. acquires shares of THC HomeCare,
Inc. in a transaction or series of transactions that result in such entity,
person or Group directly or indirectly owning beneficially fifty-one percent
(51%) or more of the outstanding shares of THC HomeCare, Inc.
As used herein, "Control Transaction" shall be (i) any tender offer for or
acquisition of capital stock of THC HomeCare, Inc., (ii) any merger,
consolidation, reorganization or sale of all or substantially all of the assets
of THC HomeCare, Inc. which has been approved by the shareholders, (iii) any
contested election of directors of THC HomeCare, Inc. or (iv) any combination of
the foregoing which results in a change in voting power sufficient to elect a
majority of the Board. As used herein, "Group" shall mean persons who act in
concert as described in Sections 13(d)(3) and/or 14(d)(2) of the Securities
Exchange Act of 1934, as amended.
6.04. Amount of Payment.
The amount of payment to which an Optionee shall be entitled upon the exercise
of each Limited Right shall be equal to 100% of the amount, if any, which is
equal to the difference between the Fair Market Value per share of Common Stock
covered by the related Option or Alternative Right on the date the Option or
Alternate Right was granted and the Fair Market Value per share of such Common
Stock on the exercise date.
6.05. Form of Payment.
Payment of the amount to which an Optionee is entitled upon the exercise of
Limited Rights, as determined pursuant to Section 6.04, shall be paid by the
Company solely in cash.
6.06. Effect of Exercise.
If Limited Rights are exercised, the Options and Alternate Rights, if any,
related to such Limited Rights cease to be exercisable to the extent of the
number of shares with respect to which the Limited Rights were exercised. Upon
the exercise or termination of the Options and Alternate Rights, if any, related
to such Limited Rights, the Limited Rights granted with respect thereto
terminate to the extent of the number of shares as to which the related Options
and Alternate Rights were exercised or terminated.
6.07. Retirement or Disability.
Upon termination of the Optionee's employment (including employment as a
director of this Company after an Optionee terminates employment as an officer
or key employee of this Company) by reason of permanent disability or retirement
(as each is determined by the Committee), the Optionee may, within three years
from the date of termination, exercise any Limited Right to the extent such
Limited Right is exercisable during such three year period.
6.08. Death of Optionee or Termination for Other Reasons.
Except as provided in Sections 6.07, 6.09 or 9.13(f), or except as otherwise
determined by the Committee, all Limited Rights granted under the Plan shall
terminate three months after the date of termination of the Optionee's
employment or one year after the death of the Optionee.
6.09. Termination Related to a Change in Control.
The requirement that an Optionee be terminated by reason of retirement or
permanent disability or be employed by the Company at the time of exercise
pursuant to Sections 6.07 and 6.08 respectively, is waived during the Exercise
Period as to any Optionee who (i) was employed by the Company at the time of the
Change in Control and (ii) is subsequently terminated by the Company other than
for cause, or who voluntarily terminates if such termination was the result of a
good faith determination by the Optionee that as a result of the Change in
Control he is unable to effectively discharge his present duties or the duties
of the position which he occupied just prior to the Change in Control. As used
in this Plan, "for cause" shall mean willful misconduct or dishonesty or
conviction of or failure to contest prosecution for a felony, or excessive
absenteeism unrelated to illness.
ARTICLE VII STOCK BONUSES
7.01 Terms, Conditions and Restrictions.
The Committee may from time to time, and subject to the provisions of the Plan
and such other terms and conditions as the Committee may prescribe, grant to any
participant in the Plan one or more Stock Bonuses as compensation the number of
shares of Common Stock allotted by the Committee ("Stock Bonuses"). Stock
awarded as a Stock Bonus shall be subject to the terms, conditions and
restrictions determined by the Committee at the time of the award. The
Committee may require the recipient to sign an agreement as a condition of the
award. The agreement may contain such terms, conditions, representations, and
warranties as the Committee may require.
ARTICLE VIII CASH BONUSES
8.01 Grant.
The Committee may from time to time, and subject to the provisions of the Plan
and such other terms and conditions as the Committee may prescribe, grant to any
participant in the Plan one or more cash bonuses as compensation ("Cash
Bonuses"). The Committee may grant Cash Bonuses under the Plan outright or in
connection with (i) an Option or Stock Appreciation Right granted or previously
granted or (ii) a Stock Bonus awarded, or previously awarded. Bonuses will be
subject to rules, terms, and conditions as the Committee may prescribe.
8.02 Cash Bonuses in Connection with Options and Stock Appreciation Rights.
Cash Bonuses granted in connection with Options will entitle an Optionee to a
Cash Bonus when the related Option is exercised (or surrendered in connection
with exercise of a Stock Appreciation Right related to the Option) in whole or
in part. Cash Bonuses granted in connection with Stock Appreciation Rights will
entitle the holder to a Cash Bonus when the Stock Appreciation Right is
exercised. Upon exercise of an Option, the amount of the Cash Bonus shall be
determined by multiplying the amount by which the total Fair Market Value of the
shares to be acquired upon the exercise exceeds the total Option Price for the
shares by the applicable bonus percentage. Upon exercise of a Stock
Appreciation Right, the cash bonus shall be determined by multiplying the total
Fair Market Value of the shares or cash received pursuant to the exercise of the
Stock Appreciation Right by the applicable bonus percentage. The bonus
percentage applicable to a Cash Bonus shall be determined from time to time by
the Committee but shall in no event exceed thirty percent.
8.03 Cash Bonuses in Connection with Stock Bonuses.
Cash Bonuses granted in connection with Stock Bonuses will entitle the person
awarded such Stock Bonuses to a Cash Bonus either at the time the Stock Bonus is
awarded or at such time as restrictions, if any, to which the Stock Bonus is
subject lapse. If a Stock Bonus awarded is subject to restrictions and is
repurchased by the Company or forfeited by the holder, the Cash Bonus granted in
connection with such Stock Bonus shall terminate and may not be exercised.
Whether any Cash Bonus is to be awarded and, if so, the amount and timing of
such Cash Bonus shall be determined from time to time by the Committee.
ARTICLE IX MISCELLANEOUS
9.01. General Restriction.
Each award under the Plan shall be subject to the requirement that, if at any
time the Committee shall determine that (i) the listing, registration or
qualification of the shares of Common Stock subject or related thereto upon any
securities exchange or under any state or Federal law, or (ii) the consent or
approval of any government regulatory body, or (iii) an agreement by the grantee
of an award with respect to the disposition of shares of Common Stock, is
necessary or desirable as a condition of, or in connection with, the granting of
such award or the issue or purchase of shares of Common Stock thereunder, such
award may not be exercised or consummated in whole or in part unless and until
such listing, registration, qualification, consent, approval or agreement shall
have been effected or obtained free of any conditions not acceptable to the
Committee.
9.02. Non-Assignability.
No award under the Plan shall be assignable or transferable by the recipient
thereof, except by Will or by the laws of descent and distribution or pursuant
to the terms of a qualified domestic relations order as defined in the U.S.
Internal Revenue Code, or as otherwise permitted by the Federal securities laws
(including, but not limited, to Section 16 of the Securities Exchange Act of
1934, as amended, and the rules promulgated thereunder). During the life of the
recipient, such award shall be exercisable only by such person or by such
person's guardian or legal representative, unless transferred consistent with
the foregoing and as expressly permitted by the agreement under which the grant
is made.
9.03. Withholding Taxes.
Whenever the Company proposes or is required to issue or transfer shares of
Common Stock under the Plan, the Company shall, to the extent permitted or
required by law, have the right to require the grantee, as a condition of
issuance of a Stock Bonus or exercise of its Options or Stock Appreciation
Rights, to remit to the Company no later than the date of issuance or exercise,
or make arrangements satisfactory to the Committee regarding payment of, any
amount sufficient to satisfy any Federal, state and/or local taxes of any kind,
including, but not limited to, withholding tax requirements prior to the
delivery of any certificate or certificates for such shares. If the participant
fails to pay the amount required by the Committee, the Company shall have the
right to withhold such amount from other amounts payable by the Company to the
participant, including but not limited to, salary, fees or benefits, subject to
applicable law. Alternatively, the Company may issue or transfer such shares of
Common Stock net of the number of shares sufficient to satisfy any such taxes,
including, but not limited to, the withholding tax requirements. For
withholding tax purposes, the shares of Common Stock shall be valued on the date
the withholding obligation is incurred.
9.04. Right to Terminate Employment.
Nothing in the Plan or in any agreement entered into pursuant to the Plan shall
confer upon any participant the right to continue in the employment of the
Company or effect any right which the Company may have to terminate the
employment of such participant.
9.05. Non-Uniform Determinations.
The Committee's determinations under the Plan (including without limitation
determinations of the persons to receive awards, the form, amount and timing of
such awards, the terms and provisions of such awards and the agreements
evidencing same) need not be uniform and may be made by it selectively among
persons who receive, or are eligible to receive, awards under the Plan, whether
or not such persons are similarly situated.
9.06. Rights as a Shareholder.
The recipient of any award under the Plan shall have no rights as a shareholder
with respect thereto unless and until certificates for shares of Common Stock
are issued to him or her.
9.07 Fractional Shares. Fractional shares shall not be granted under any
award under this Plan, unless the provision of the Plan which authorizes such
award also specifies the terms under which fractional shares or interests may be
granted.
9.08. Definitions.
As used in this Plan, the following words and phrases shall have the meanings
indicated in the following definitions:
(a) "AFFILIATE" means any person or entity which directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is
under common control with THC HomeCare, Inc..
(b) "DISABILITY" shall mean an Optionee's inability to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death
or that has lasted or can be expected to last for a continuous period
of not less than one year.
(c) "FAIR MARKET VALUE" per share in respect of any share of Common Stock
as of any particular date shall mean (i) the closing sales price per
share of Common Stock reflected on a national securities exchange for
the last preceding date on which there was a sale of such Common
Stock on such exchange; or (ii) if the shares of Common Stock are
then traded on an over-the-counter market, the average of the closing
bid and asked prices for the shares of Common Stock in such over-the-
counter market for the last preceding date on which there was a sale
of such Common Stock in such market; or (iii) in case no reported
sale takes place, the average of the closing bid and asked prices on
the National Association of Securities Dealers' Automated Quotations
System ("NASDAQ") or any comparable system, or if the shares of
Common Stock are not listed on NASDAQ or comparable system, the
closing sale price or, in case no reported sale takes place, the
average of the closing bid and asked prices, as furnished by any
member of the National Association of Securities Dealers, Inc.
selected from time to time by the Company for that purpose; or (iv)
if the shares of Common Stock are not then listed on a national
securities exchange or traded in an over-the-counter market, such
value as the Committee in its discretion may determine in any such
other manner as the Committee may deem appropriate. In no event
shall the Fair Market Value of any share of Common Stock be less than
its par value. In the case of Incentive Stock Options, the Fair
Market Value shall not be discounted for restrictions, lack of
marketability and other such limitations on the enjoyment of the
Common Stock. In the case of other type of Options, the Fair Market
Value of the Common Stock shall be so discounted.
(d) "OPTION" means Stock Option, Incentive Stock Option or Reload Option.
(e) "OPTION PRICE" means the purchase price per share of Common Stock
deliverable upon the exercise of an Option.
(f) "PARENT CORPORATION" shall mean any corporation (other than THC
HomeCare, Inc.) in an unbroken chain of corporations ending with the
Optionee's employer corporation if, at the time of granting an
Option, each of the corporations other than the Optionee's employer
corporation owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations
in such chain.
(g) "STOCK APPRECIATION RIGHT" shall mean Alternate Right or Limited
Right.
(h) "SUBSIDIARY CORPORATION" shall mean any corporation (other than THC
HomeCare, Inc.) in an unbroken chain of corporations beginning with
the Optionee's employer corporation if, at the time of granting an
Option, each of the corporations other than the last corporation in
the unbroken chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
(i) "TEN PERCENT STOCKHOLDER" shall mean an Optionee who, at the time an
Incentive Stock Option is granted, is an employee of the Company who
owns stock possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of
its Parent or Subsidiary Corporations.
9.09. Leaves of Absence and Performance Targets.
The Committee shall be entitled to make such rules, regulations and
determinations as it deems appropriate under the Plan in respect of any leave of
absence taken by the recipient of any award. Without limiting the generality of
the foregoing, the Committee shall be entitled to determine (i) whether or not
any such leave of absence shall constitute a termination of employment within
the meaning of the Plan and (ii) the impact, if any, of such leave of absence on
awards under the Plan theretofore made to any recipient who takes such leave of
absence. The Committee shall also be entitled to make such determination of
performance targets, if any, as it deems appropriate and to impose them upon an
Optionee as a condition of continued employment.
9.10. Newly Eligible Employees.
The Committee shall be entitled to make such rules, regulations, determinations
and awards as it deems appropriate in respect of any employee who becomes
eligible to participate in the Plan or any portion thereof, after the
commencement of an award or incentive period.
9.11. Adjustments.
In the event of any change in the outstanding Common Stock by reason of a stock
dividend or distribution, recapitalization, merger, consolidation, split-up,
combination, exchange of shares or the like, the Committee may appropriately
adjust the number of shares of Common Stock which may be issued under the Plan,
the number of shares of Common Stock subject to Options theretofore granted
under the Plan, the Option Price of Options theretofore granted under the Plan,
the amount of Restricted Stock Units theretofore awarded under the Plan, the
performance targets referred to in Section 9.08 and any and all other matters
deemed appropriate by the Committee.
9.12. Amendment of the Plan.
(a) The Committee may, without further action by the shareholders and
without receiving further consideration from the participants, amend this Plan
or condition or modify awards under this Plan in response to changes in
securities, tax or other laws or rules, regulations or regulatory
interpretations thereof applicable to this Plan or to comply with stock exchange
rules or requirements.
(b) The Committee may at any time and from time to time terminate or
modify or amend the Plan in any respect, except that without shareholder
approval the Committee may not (i) increase the maximum number of shares of
Common Stock which may be issued under the Plan (other than increases pursuant
to Section 9.10), (ii) extend the period during which any award may be granted
or exercised, or (iii) extend the term of the Plan. The termination or any
modification or amendment of the Plan, except as provided in subsection (a),
shall not without the consent of a participant, affect his other rights under an
award previously granted to him or her.
9.13. General Terms and Conditions of Options.
Each Option shall be evidenced by a written Option Agreement between the Company
and the Optionee, which agreement, unless otherwise stated in Articles II, III
or IV of the Plan, shall comply with and be subject to the following terms and
conditions:
(a) Number of Shares. Each Option Agreement shall state the number
of shares of Common Stock to which the Option relates.
(b) Type of Option. Each Option Agreement shall specifically
identify the portion, if any, of the Option which constitutes an
Incentive Stock Option and the portion, if any, which constitutes a Non-
qualified Stock Option in the form of either a Stock Option or a Reload
Option.
(c) Option Price. Each Option Agreement shall state the Option
Price which, in the case of Incentive Stock Options (except to the extent
provided in Article III above), shall be not less than 100% of the
undiscounted Fair Market Value of the shares of Common Stock of the
Company on the date of grant of the Option. The Option Price shall be
subject to adjustment as provided in 9.13(i) hereof. The date on which
the Committee adopts a resolution expressly granting an Option shall be
considered the day on which such Option is granted. No Options shall be
granted under the Plan more than 10 years after the date of adoption of
the Plan by the Board, but the validity of Options previously granted may
extend and be validly exercised beyond that date. Except as provided in
Section 3.10 above, Options granted under the Plan shall be for a period
determined by the Committee as provided in Section 9.13(e), below.
(d) Medium and Time of Payment. The Option Price shall be paid in
full at the time of exercise in cash or in shares of Common Stock having
a Fair Market Value equal to such Option Price or in a combination of
cash and such shares, and may be effected in whole or in part (i) with
monies received from the Company at the time of exercise as a
compensatory cash payment, or (ii) with monies borrowed from the Company
pursuant to repayment terms and conditions as shall be determined from
time to time by the Committee, in its discretion, separately with respect
to each exercise of Options and each Optionee; provided, however, that
each such method and time for payment and each such borrowing and terms
and conditions of repayment shall be permitted by and be in compliance
with applicable law, and provided, further, if the Option Price is paid
with monies borrowed from the Company, such fact shall be noted
conspicuously on the certificate evidencing such shares in accordance
with applicable law.
(e) Term and Exercise of Options. Options shall be exercisable
over the exercise period as and at the times and upon the conditions that
the Committee may determine, as reflected in the Option Agreement;
provided, however, that the Committee shall have the authority to
accelerate the exercisability of any outstanding Option at such time and
under such circumstances, as it, in its sole discretion, deems
appropriate. The exercise period shall be determined by the Committee
for all Options; provided, however that such exercise period shall not
exceed 10 years from the date of grant of such Option. The exercise
period shall be subject to earlier termination as provided in Sections
9.13(f) and 9.13(g) hereof. An Option may be exercised, as to any or all
full shares of Common Stock as to which the Option has become
exercisable, by giving written notice of such exercise to the Committee;
provided, however, that an Option may not be exercised at any one time as
to fewer than 100 shares (or such number of shares as to which the Option
is then exercisable if such number of shares is less than 100).
(f) Termination. Except as provided in Section 9.13(e) and in this
Section 9.13(f) hereof, an Option may not be exercised unless the
Optionee is then in the employ of the Company or a Parent, division or
Subsidiary Corporation (or a corporation issuing or assuming the Option
in a transaction to which Code Section 424(a) applies), and unless the
Optionee has remained continuously so employed since the date of grant of
the Option. If the employment of an Optionee shall terminate (other than
by reason of death, disability or retirement), all Options of such
Optionee that are exercisable at the time of such termination may, unless
earlier terminated in accordance with their terms, be exercised within
three months after such termination; provided, however, that if the
employment of an Optionee shall terminate for cause, all Options
theretofore granted to such Optionee shall, to the extent not theretofore
exercised, terminate forthwith. Nothing in the Plan or in any Option
shall limit the Company's rights under Section 9.04 above. No Option may
be exercised after the expiration of its term.
(g) Death, Disability or Retirement. If an Optionee shall die
while employed by the Company, a Parent or a Subsidiary Corporation
thereof, or die within three months after the termination of such
Optionee's employment other than for cause, all Options theretofore
granted to such Optionee (to the extent otherwise exercisable) may,
unless earlier terminated in accordance with their terms, be exercised by
the Optionee or by the Optionee's estate or by a person who acquired the
right to exercise such Option by bequest or inheritance or otherwise by
reason of the death or disability of the Optionee, at any time within one
year after the date of death of the Optionee. If the Optionee's
employment shall terminate by reason of disability or retirement, all
Options theretofore granted to such Optionee (to the extent otherwise
exercisable) may, unless earlier terminated in accordance with their
terms, be exercised by the Optionee at any time within three years after
the date of disability or retirement of the Optionee.
(h) Non-transferability of Options. Options granted under the Plan
shall not be transferable otherwise than (i) by will; (ii) by the laws of
descent and distribution; or (iii) to a revocable inter vivos trust for
the primary benefit of the Optionee and his or her spouse. Options may
be exercised, during the lifetime of the Optionee, only by the Optionee,
his or her guardian, legal representative or the Trustee of an above
described trust. Except as permitted by the preceding sentences, no
Option granted under the Plan or any of the rights and privileges thereby
conferred shall be transferred, assigned, pledged, or hypothecated in any
way (whether by operation of law or otherwise), and no such Option,
right, or privilege shall be subject to execution, attachment, or similar
process. Upon any attempt so to transfer, assign, pledge, hypothecate,
or otherwise dispose of the Option, or of any right or privilege
conferred thereby, contrary to the provisions of this Plan, or upon the
levy of any attachment or similar process upon such Option, right, or
privilege, the Option and such rights and privileges shall immediately
become null and void.
(i) Effect of Certain Changes.
(A) If there is any change in the number of shares of Common
Stock through the declaration of stock dividends, or through
recapitalization resulting in stock splits, or combinations or
exchanges of such shares, the number of shares of Common Stock
available for awards under the Plan pursuant to Section 1.05 above,
the number of such shares covered by the outstanding Options and the
price per share of such Options shall be proportionately adjusted by
the Committee to reflect any increase or decrease in the number of
issued shares of Common Stock; provided, however, that any fractional
shares resulting from such adjustment shall be eliminated.
(B) In the event of the proposed dissolution or liquidation of
the Company, in the event of any corporate separation or division,
including, but not limited to split-up, split-off or spin-off, or in
the event of a merger, consolidation or other reorganization of the
Corporation with another corporation, the Committee may provide that
the holder of each Option then exercisable shall have the right to
exercise such Option (at its then Option Price) solely for the kind
and amount of shares of stock and other securities, property, cash or
any combination thereof receivable upon such dissolution,
liquidation, or corporate separation or division, or merger,
consolidation or other reorganization by a holder of the number of
shares of Common Stock for which such Option might have been
exercised immediately prior to such dissolution, liquidation, or
corporate separation or division, or merger, consolidation or other
reorganization; or the Committee may provide, in the alternative,
that each Option granted under the Plan shall terminate as of a date
to be fixed by the Committee; provided, however, that not less than
90-days' written notice of the date so fixed shall be given to each
Optionee, who shall have the right, during the period of 90 days
preceding such termination, to exercise the Options as to all or any
part of the shares of Common Stock covered thereby, including shares
as to which such Options would not otherwise be exercisable;
provided, further, that failure to provide such notice shall not
invalidate or affect the action with respect to which such notice was
required.
(C) If while unexercised Options remain outstanding under the
Plan, the stockholders of the Corporation approve a definitive
agreement to merge, consolidate or otherwise reorganize the Company
with or into another corporation or to sell or otherwise dispose of
all or substantially all of its assets, or adopt a plan of
liquidation (each, a "Disposition Transaction"), then the Committee
may: (i) make an appropriate adjustment to the number and class of
shares available for awards under the Plan pursuant to Section 1.05
above, and to the amount and kind of shares or other securities or
property (including cash) receivable upon exercise of any outstanding
options after the effective date of such transaction, and the price
thereof, or, in lieu of such adjustment, provide for the cancellation
of all options outstanding at or prior to the effective date of such
transaction; (ii) provide that exercisability of all Options shall be
accelerated, whether or not otherwise exercisable; or (iii) in its
discretion, permit Optionees to surrender outstanding options for
cancellation; provided, however, that if the stockholders approve
such Disposition Transaction within five years of the date of
adoption of this Plan and before the Company is taken public, the
Committee shall provide for the alternative in (ii) above. Upon any
cancellation of an outstanding Option pursuant to this 9.13(i)(C),
the Optionee shall be entitled to receive, in exchange therefor, a
cash payment under any such Option in an amount per share determined
by the Committee in its sole discretion, but not less than the
difference between the per share exercise price of such Option and
the Fair Market Value of a share of Company Common Stock on such date
as the Committee shall determine.
(D) Paragraphs (B) and (C) of this Section 9.13(i) shall not
apply to a merger, consolidation or other reorganization in which the
Company is the surviving corporation and shares of Common Stock are
not converted into or exchanged for stock, securities of any other
corporation, cash or any other thing of value. Notwithstanding the
preceding sentence, in case of any consolidation, merger or other
reorganization of another corporation into the Company in which the
Company is the surviving corporation and in which there is a
reclassification or change (including a change to the right to
receive cash or other property) of the shares of Common Stock (other
than a change in par value, or from par value to no par value, or as
a result of a subdivision or combination, but including any change in
such shares into two or more classes or series of shares), the
Committee may provide that the holder of each Option then exercisable
shall have the right to exercise such Option solely for the kind and
amount of shares of stock and other securities (including those of
any new direct or indirect parent of the Company), property, cash or
any combination thereof receivable upon such reclassification,
change, consolidation or merger by the holder of the number of shares
of Common Stock for which such Option might have been exercised.
(E) In the event of a change in the Common Stock of the
Company as presently constituted which is limited to a change of all
of its authorized shares with par value into the same number of
shares with a different par value or without par value, the shares
resulting from any such change shall be deemed to be the Common Stock
within the meaning of the Plan.
(F) To the extent that the foregoing adjustments relate to
stock or securities of the Company, such adjustments shall be made by
the Committee, whose determination in that respect shall be final,
binding and conclusive, provided that each Incentive Stock Option
granted pursuant to Article III of this Plan shall not be adjusted in
a manner that causes such option to fail to continue to qualify as an
Incentive Stock Option within the meaning of Section 422 of the Code.
(G) Except as hereinbefore expressly provided in this Section
9.13(i), the Optionee shall have no rights by reason of any
subdivision or consolidation of shares of stock or any class or the
payment of any stock dividend or any other increase or decrease in
the number of shares of stock of any class or by reason of any
dissolution, liquidation, merger, consolidation or other
reorganization or spin-off of assets or stock of another corporation;
and any issue by the Company of shares of stock of any class shall
not affect, and no adjustment by reason thereof shall be made with
respect to, the number of price of shares of Common Stock subject to
the Option. The grant of an Option pursuant to the Plan shall not
affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its
capital or business structures or to merge or to consolidate or to
dissolve, liquidate or sell, or transfer all or part of its business
or assets.
(j) Rights as a Shareholder. An Optionee or a transferee of an
Option shall have no right as a shareholder with respect to any shares
covered by the Option until the date of the issuance of a certificate
evidencing such shares. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other
property) or distribution of other rights for which the record date is
prior to the date such certificate is issued, except as provided in
Section 9.13(i) hereof.
(k) Other Provisions. The Option Agreement authorized under the
Plan shall contain such other provisions, including, without limitation,
(A) the imposition of restrictions upon the exercise of an Option; (B) in
the case of an Incentive Stock Option, the inclusion of any condition not
inconsistent with such Option qualifying as an Incentive Stock Option;
and (C) conditions relating to compliance with applicable federal and
state securities laws, as the Committee shall deem advisable.
9.14. Effects of Headings
The Section and Subsection headings contained herein are for convenience only
and shall not affect the construction hereof.
ADOPTED BY RESOLUTION OF THE BOARD OF DIRECTORS, EFFECTIVE THE 5th DAY OF
OCTOBER 1996.
/s/ Charles W. McLaughlin, Chairman
<PAGE>
Exhibit 4(c)
STOCK OPTION AGREEMENT
For Non-statutory Stock Option
Under the
1996 Directors' Stock Option Plan
THC HomeCare, Inc.
Pursuant to the terms and conditions of the THC HomeCare, Inc. 1995 Directors'
Stock Option Plan (the "Plan"), THC HomeCare, Inc. (the "Company"), desiring to
afford an opportunity to the Grantee named below to purchase certain shares of
the Company's common stock to provide the Grantee with an added incentive as a
director of the Company hereby grants to the Grantee and the Grantee hereby
accepts an Option to purchase the number of such shares specified below during a
term ending at midnight Mountain Time on the Expiration Date of this Option
specified below at the Option Exercise Price specified below subject to and upon
the following terms and conditions:
1. Identifying Provisions. As used in this Option, the following terms
shall have the following respective meanings:
a. Grantee:
b. Date of Grant:
c. Number of Shares Optioned:
d. Option Exercise Price Per Share:
e. Expiration Date:
2. Vesting Schedule and Expiration. This Option is not exercisable in
any part until six (6) months after the date of Grant. Upon the expiration of
six (6) months after the date of Grant, and subject to the provisions for
termination and acceleration herein, this Option shall become exercisable
pursuant to the vesting schedule set forth below until and including the
expiration date of this Option, whereupon the Option shall expire and may
thereafter no longer be exercised. Vesting of the Option shall be as follows:
3. Termination Provisions. The right to exercise this Option is subject
to the restrictions and limitations contained in the Plan, which are hereby
incorporated in and made a part of this Agreement. Termination of the Option is
governed in particular instances in the Plan, as follows:
1. If the Grantee ceases to be a Director for any reason
other than resignation, removal for cause or death, any outstanding stock
option held by the Grantee under this Agreement at such time shall be
exercisable by the Grantee (but only if exercisable immediately prior to
ceasing to be a Director) at any time prior to the Expiration Date or
within three years after the date the Grantee ceases to be a Director,
whichever is the shorter period;
2. If during his term of office as a Director, Grantee
resigns from the Board or is removed from office for cause, any
outstanding stock option held by the Grantee hereunder which is not
exercisable by him immediately prior to resignation or removal shall
terminate as of the date of resignation or removal, and any outstanding
stock option held by the Grantee which is exercisable immediately prior
to resignation or removal shall be exercisable at any time prior to the
Expiration Date or within six months after the date of resignation or
removal, whichever period is shorter;
3. Following the death of Grantee during service as a
Director of the Company, any outstanding stock option held by him under
this Agreement at the time of death (whether or not exercisable by the
Grantee immediately prior to death) shall be exercisable by the person
entitled to do so under the Will of the Grantee, or, if the Grantee shall
fail to make testamentary disposition of the stock option or shall die
intestate, by the legal representative of the Grantee at any time prior
to the Expiration Date or within three years after the date of death of
Grantee, whichever is the shorter period;
4. Following the death of Grantee after ceasing to be a
Director and during a period when a stock option hereunder is exercisable
under (b) above, the stock option shall be exercisable by such person
entitled to do so under the Will of the Grantee or by such legal
representative at any time prior to the Expiration Date or within one
year after the date of death, whichever is the shorter period;
5. Following the death of Grantee after ceasing to be a
Director and during a period when a stock option is exercisable under
clause (c) above, the stock option shall be exercisable by such person
entitled to do so under the Will of the Grantee or by such legal
representative at any time during the shorter of the following two
periods: (i) until the Expiration Date, or (ii) until three years after
the Grantee ceased being a Director or one year after the date of death
of the Grantee, (whichever is longer).
A stock option held by an Grantee who has ceased to be a Director of the
Company shall terminate upon the expiration of the applicable Exercise Period,
if any, specified in this Agreement.
4. Restrictions on Transferability of Option. This Option may not be
transferred by the Grantee other than by will or the laws of descent and
distribution or pursuant to the terms of a qualified domestic relations order as
defined in the U.S. Internal Revenue Code. During the Grantee's lifetime the
Option may be exercised only by the Grantee or the Grantee's guardian or legal
representative.
5. Adjustments and Corporate Reorganizations. Subject to the provisions
of the Plan under which this Option is granted, if the outstanding shares of
stock of the class then subject to this Option are increased or decreased or are
changed into or exchanged for a different number or kind of shares or securities
or other forms of property (including cash), or rights as a result of one or
more reorganizations, recapitalizations, spin-offs, stock splits, reverse stock
splits, stock dividends or the like, appropriate adjustments shall be made in
the number and/or kind of shares or securities or other forms of property
(including cash) or rights for which this Option may thereafter be exercised,
although without any change in the aggregate exercise price applicable to the
unexercised portions of this Option, but with a corresponding adjustment in the
exercise price per share. No fractional share of stock shall be issued under
this Option or in connection with any adjustment. Such adjustments shall be
made by the Committee, under authority of the Company's Board of Directors,
whose determinations as to what adjustments shall be made and the extent
thereof, shall be final, binding and conclusive. Upon the dissolution or
liquidation of the Company or upon a reorganization, merger or consolidation of
the Company as a result of which the outstanding securities of the class then
subject to this Option are changed into or exchanged for property (including
cash), rights or securities not of the Company's issue or any combination
thereof, or upon a sale of substantially all of the property of the Company to
or the acquisition of stock representing more than eighty percent (80%) of the
voting power of the stock of the Company then outstanding by another corporation
or person, this Option shall terminate unless provision is made in writing in
connection with such transaction for the assumption of this Option or the
substitution for this Option of an Option covering the stock of a successor
employer corporation or a parent or a subsidiary thereof, with appropriate
adjustments in accordance with the provisions above in this section entitled
"Adjustments and Corporate Reorganizations" as to the number and kind of shares
optioned and their exercise prices, in which event this Option shall continue
in the manner and under the terms so provided. If this Option shall so
terminate, the Grantee or other person then entitled to exercise this Option
shall have the right at such time prior to the consummation of the transaction
causing such termination as the Company shall designate to exercise the
unexercised portions of this Option, including the portions thereof which would
but for this section entitled "Adjustments and Corporate Reorganizations," not
yet be exercisable.
6. Exercise, Payment For and Delivery of Stock. The Option Price shall
be paid in full at the time of exercise in cash or in shares of Common Stock
having a Fair Market Value equal to such Option Price or in a combination of
cash and such shares, and may be effected in whole or in part (i) with monies
received from the Company at the time of exercise as a compensatory cash
payment, or (ii) with monies borrowed from the Company pursuant to repayment
terms and conditions as shall be determined from time to time by the Committee,
in its discretion, separately with respect to each exercise of Options and each
Grantee; provided, however, that each such method and time for payment and each
such borrowing and terms and conditions of repayment shall be permitted by and
be in compliance with applicable law, and provided, further, if the Option Price
is paid with monies borrowed from the Company, such fact shall be noted
conspicuously on the certificate evidencing such shares in accordance with
applicable law. This Option may be exercised by the Grantee or other person
then entitled to exercise it by giving four (4) business days written notice of
exercise on the form attached to this Option Agreement to the Company specifying
the number of shares to be purchased and the total purchase price, accompanied
by payment of the purchase price as indicated above. If the Company is required
to withhold on account of any federal, state or local tax imposed as a result of
such exercise,the notice of exercise shall also be accompanied by a check to
the order of the Company in payment of the amount thus required to be withheld.
7. Rights in Stock Before Issuance and Delivery. No person shall be
entitled to the privileges of stock ownership in respect of any shares issuable
upon exercise of this Option unless and until such shares have been issued to
such person as fully-paid shares.
8. Requirements of Law. By accepting this Option, the Grantee
represents and agrees for himself or herself and his or her transferees by will
or the laws of descent and distribution that unless a registration statement
under the Securities Act of 1933 is in effect as to shares purchased upon any
exercise of this Option (a) any and all shares so purchased shall be acquired
for his or her personal account and not with a view to or for sale in connection
with any distribution and (b) each notice of the exercise of any portion of this
Option shall be accompanied by a representation and warranty in writing signed
by the person entitled to exercise the same, that the shares are being so
acquired in good faith for his or her personal account and not with a view to or
for sale in connection with any distribution. No certificate or certificates
for shares of stock purchased upon exercise of this Option shall be issued and
delivered unless and until, in the opinion of legal counsel for the Company,
such securities may be issued and delivered without causing the Company to be in
violation of or incur any liability under any federal, state or other securities
law, or any other requirement of law or of any regulatory body having
jurisdiction over the Company.
9. Stock Option Plan. This Option is subject to and the Company and
Grantee agree to be bound by all of the terms and conditions of the Company's
Plan under which this Option was granted, as the same may have been amended from
time to time in accordance with its terms; provided that no such amendment shall
deprive the Grantee without the Grantee's consent of this Option or any rights
hereunder. Pursuant to said Plan, the Committee, or if there is no Committee,
the Board of Directors of the Company is vested with exclusive authority to
interpret and construe the Plan and this Option and is authorized to adopt rules
and regulations for carrying out the Plan. A copy of the Plan in its present
form is available for inspection during business hours by the Grantee or other
persons entitled to exercise this Option at the Company's principal office.
10. Notices. Any notice to be given to the Company shall be addressed
to the Company in care of its Corporate Secretary at its principal offices and
any notice to be given to the Grantee shall be addressed to the Grantee at the
address set forth beneath the Grantee's signature hereto or at such other
address as the Grantee may hereafter designate in writing to the Company. Any
such notice shall be deemed duly given when enclosed in a properly sealed
envelope or wrapper addressed as before said, registered or certified and
deposited postage and registry or certification fees prepaid in a post office
or branch post office regularly maintained by the United States Postal Service.
This Agreement has been executed and delivered by the Company in Salt
Lake City, Utah and shall be construed and enforced in accordance with the laws
of said state, other than any choice of law rules calling for the application of
laws of another jurisdiction. Should there be any inconsistency or discrepancy
between the provisions of this Option and the terms and conditions of the Plan,
under which this Option is granted, the provisions in the Plan shall govern and
prevail. The receipt of this Option does not give the grantee any right to
continued employment by the Company or a subsidiary for any period, nor shall
the granting of this Option or the issuance of shares on exercise thereof give
the Company or any subsidiary any right to the continued services of the Grantee
for any period.
IN WITNESS WHEREOF the Company has granted this Option on the date of Grant
specified above.
THC HomeCare, Inc.
215 South State Street, Suite 535
Salt Lake City, UT 84111
By:______________________________________
Its:____________________________________
GRANTEE:
_________________________________________
Signature
_________________________________________
Print or Type Name
Address:
_________________________________________
_________________________________________
City/State/Zip
SUBSCRIPTION AND NOTICE OF EXERCISE
THC HomeCare, Inc.
4550 South Main Street
Salt Lake City, Utah 84127
Ladies and Gentlemen:
The undersigned hereby elects to purchase, pursuant to the provisions of
the Stock Option Agreement and Option held by the undersigned, dated ________,
199__, _________ shares of the Common Stock of THC HomeCare, Inc., a Utah
corporation, issuable upon exercise of said Option.
The undersigned hereby represents and warrants that the undersigned is
acquiring such stock for his own account and not for resale or with a view to
distribution of any part thereof.
The undersigned hereby attaches the purchase price payable for such
shares at $____ per share in the form of ____________________________________
(specify cash, check, money order, other securities, etc.).
Dated:
Address:
(Social Security Number)
<PAGE>
Exhibit 5
DURHAM, EVANS, JONES & PINEGAR
50 South Main Street, Suite 850
Salt Lake City, Utah 84144
December 5, 1996
THC HOMECARE, Inc.
215 South State Street, Suite 535
Salt Lake City, Utah 84111
Re: Registration Statement on Form S-8 relating to THC HomeCare, Inc. 1996
Director's Stock Option Plan and 1996 Stock Option Plan (the "Plans")
Dear Sirs:
We have acted as counsel for THC HomeCare, Inc., a Utah corporation (the
"Company") in connection with the registration under the Securities Act of
1933, as amended (the "Act") of an aggregate of 900,000 shares of the
Company's Common Stock, par value $.001 (the "Shares") to be issued in
accordance with the terms of the Plans.
In connection with the foregoing, we have examined originals or copies,
certified or otherwise authenticated to our satisfaction, of such corporate
records of the Company and other instruments and documents as we have deemed
necessary to require as a basis for the opinion hereinafter expressed.
Based upon the foregoing and in reliance thereon, it is our opinion that
the Shares described in the above-referenced Registration Statement, when
issued pursuant to the terms of the Plan, will be validly issued, fully paid
and non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Registration
statement and the prospectus to be delivered thereunder. In giving this
consent, we do not thereby admit that we come with the category of persons
whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
Sincerely,
DURHAM, EVANS, JONES & PINEGAR, P.C.
