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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
EMCARE HOLDINGS INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 1717 Main Street, Suite 5200 13-3645287
(State or Other Dallas, Texas 75201 (I.R.S. Employer
Jurisdiction of (214) 712-2000 Identification No.)
Incorporation or
Organization) (Address of Principal Executive
Offices Including Zip Code)
---------------------------
EMCARE HOLDINGS INC.
AMENDED AND RESTATED STOCK OPTION AND
RESTRICTED STOCK PURCHASE PLAN
(Full Title of the Plan)
------------------------
Robert F. Anderson, II
Chief Financial Officer, Senior Vice President, Treasurer, and Secretary
EmCare Holdings Inc.
1717 Main Street, Suite 5200
Dallas, Texas 75201
(Name and Address of Agent For Service)
---------------------------------------
(214) 712-2000
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
- ------------- ------------ ------------------ ----------------- ----------------
Title of
Securities Proposed Maximum Proposed Maximum
to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share Offering Price Registration Fee
- ------------- ------------ ------------------ ----------------- ----------------
- ------------- ------------ ------------------ ----------------- ----------------
Common Stock,
par
value $.01
per share 2,000,000(1) $25.375(2) $50,750,000(2) $17,500
- ------------- ------------ ------------------ ----------------- ----------------
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act") this Registration Statement on Form S-8 (this
"Registration Statement") also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.(3)
(1) This Registration Statement registers the issuance or transfer of:
(i) 2,000,000 shares of the common stock, par value $.01 per share (the
"Shares") of EmCare Holdings Inc., a Delaware corporation ("the Company"),
presently reserved for issuance under the EmCare Holdings Inc. Amended and
Restated Stock Option and Restricted Stock Purchase Plan, as amended (the
"Plan"), (ii) additional Shares that become available under the Plan in
connection with certain changes in the number of outstanding Shares
because of such things as recapitalizations, stock dividends, and stock
splits, and (iii) any other securities with respect to which the
outstanding Shares are converted or exchanged. The Company has previously
registered the issuance or transfer of an aggregate of 1,250,000 shares of
common stock, par value $.01 per share issuable under the Plan. On May 16,
1996, the shareholders of the Company voted to approve an amendment to the
Plan which makes the Shares issuable thereunder (in addition to the
previously registered 1,250,000 shares).
(2) Pursuant to Paragraphs (c) and (h) of Rule 457 under the Securities Act,
the Company has determined the proposed maximum offering price per Share
(solely for the purpose of calculating the filing fee herein) to be
$25.375. This price is the average of the the high and low prices of the
Company's common stock on September 24, 1996, a date which is within five
business days before the filing of this Registration Statement. Pursuant
to Paragraph (h) of Rule 457, the Company does not owe a separate
registration fee with respect to the Plan interests.
(3) These Plan interests may include awards of restricted stock, incentive
stock options, and non-qualified stock options.
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1
<PAGE>
This Registration Statement registers additional securities of
the same class as other securities for which Registration Statement Number
33-95684 on Form S-8 as filed with the Commission on August 10, 1995 is
currently effective. Pursuant to General Instruction E to Form S-8, the contents
of the registration statement described above are hereby incorporated by
reference herein. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in this Registration Statement or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or replaces such statement.
For administrative convenience, this Registration Statement
registers the issuance of all of the additional 2,000,000 Shares available for
issuance under the Plan. As the Plan may permit the issuance of Shares to
ineligible individuals under General Instruction A(1) to Form S-8, however, the
issuance of any Shares to such individuals shall be deemed not to be covered by
this Registration Statement. To the extent that the Company may not register the
issuance of Shares pursuant to the exercise of stock options vested before the
filing of this Registration Statement with the Securities and Exchange
Commission (the "Commission"), this Registration Statement shall also be deemed
not to cover the issuance of such Shares.
Item 8. Exhibits.
Exhibit No. Description
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4.1 EmCare Holdings Inc. Amended and Restated Stock Option
and Restricted Stock Purchase Plan.
5.1 Opinion of Gibson, Dunn & Crutcher LLP.
23.1 Consent of Gibson, Dunn & Crutcher LLP (included in
Exhibit No. 5.1)
23.2 Consent of Ernst & Young LLP.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on this 27th day of
September, 1996.
EMCARE HOLDINGS INC.
By: /s/ Robert F. Anderson, II
Name: Robert F. Anderson, II
Title: Chief Financial Officer,
Senior Vice President,
Treasurer, and Secretary
[SIGNATURES CONTINUED ON THE NEXT PAGE]
2
<PAGE>
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Name and Signature Title Date
------------------ ----- ----
/s/ Andrew G. Buck Chief Accounting Officer and September 27, 1996
- ---------------------------- Vice President
ANDREW G. BUCK
/s/ Robert F. Anderson, II Chief Financial Officer, September 27, 1996
- ---------------------------- Senior Vice President,
ROBERT F. ANDERSON, II Treasurer, and Secretary
/s/ Terry Hartshorn Director September 27, 1996
- -----------------------------
TERRY HARTSHORN
/s/ James T. Kelly Director September 27, 1996
- -----------------------------
JAMES T. KELLY
/s/ William F. Miller, III President, Chief Operating September 27, 1996
- ----------------------------- Officer, and Director
WILLIAM F. MILLER, III
/s/ Andrew M. Paul Director September 27, 1996
- ------------------------------
ANDREW M. PAUL
/s/ Leonard M. Riggs, Jr., M.D. Chairman of the Board, September 27, 1996
- ------------------------------- Chief Executive Officer,
LEONARD M. RIGGS, JR., M.D. and Director
/s/ Richard H. Stowe Director September 27, 1996
- -------------------------------
RICHARD H. STOWE
3
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
- --------------------------------------------------------------------------------
4.1 EmCare Holdings Inc. Amended and Restated Stock Option
and Restricted Stock Purchase Plan..................... 5
5.1 Opinion of Gibson, Dunn & Crutcher LLP...................... 21
23.1 Consent of Gibson, Dunn & Crutcher LLP
(included in Exhibit No. 5.1)............................... N/A
23.2 Consent of Ernst & Young LLP................................ 23
4
EMCARE HOLDINGS INC.
STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
(AMENDED AND RESTATED AS OF FEBRUARY 4, 1992)
Section l. Purpose. The purpose of the EmCare Holdings Inc. Stock
Option and Restricted Stock Purchase Plan (the "Plan") is to promote the
interests of EmCare Holdings Inc., a Delaware corporation (the "Company"), and
any Subsidiary thereof and the interests of the Company's stockholders by
providing an opportunity to selected employees, officers, directors, trustees
and consultants and advisors of the Company or any Subsidiary thereof or any
Affiliated PC as of the date of the adoption of the Plan or at any time
thereafter to purchase Common Stock of the Company. By encouraging such stock
ownership, the Company seeks to attract, retain and motivate such employees and
persons and to encourage such employees and persons to devote their best efforts
to the business and financial success of the Company. It is intended that this
purpose will be effected by the granting of "nonqualified stock options" and/or
"incentive stock options" to acquire the Common Stock of the Company and/or by
the granting of rights to purchase the Common Stock of the Company on a
"restricted stock" basis. Under the Plan, the Committee shall have the authority
(in its sole discretion) to grant "incentive stock options" within the meaning
of Section 422(b) of the Code, "non-qualified stock options" as described in
Treasury Regulation Section 1.83-7 or any successor regulation thereto, or
"restricted stock" awards.
Section 2. Definitions. For purposes of the Plan, the following terms
used herein shall have the following meanings, unless a different meaning is
clearly required by the context.
2.1. "Award" shall mean an award of the right to purchase Common
Stock granted under the provisions of Section 7 of the Plan.
2.2. "Affiliated PC" shall mean any professional corporation or
professional association which provides the medical component of the services
required in respect of any arrangement where the Company or a Subsidiary of the
Company provides the non-medical component of the services required in respect
of such arrangement.
2.3. "Board of Directors" shall mean the Board of Directors of
the Company.
2.4. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
2.5. "Committee" shall mean the committee of the Board of
Directors referred to in section 5 hereof.
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2.6. "Common Stock" shall mean the Common Stock, $.01 par value,
of the Company.
2.7 "Effective Date" shall mean the date the Company becomes subject to
the reporting requirements of Section 13 or 15(d) of the Exchange Act.
2.8. "Employee" shall mean (i) with respect to an ISO, any person,
including an officer, director or trustee of the Company or a Subsidiary of the
Company, who, at the time an ISO is granted to such person hereunder, is
employed on a full-time basis by the Company or any Subsidiary of the Company,
and (ii) with respect to a Non-Qualified Option and/or an Award, any person
employed by, or performing services for, the Company or any Subsidiary of the
Company or any Affiliated PC, including, without limitation, trustees, directors
and officers.
2.9. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
2.10. "ISO" shall mean an Option granted to a Participant pursuant
to the Plan that constitutes and shall be treated as an "incentive stock option"
as defined in Section 422(b) of the Code.
2.11. "Non-Qualified Option" shall mean an Option granted to a
Participant pursuant to the Plan that is intended to be, and qualifies as, a
"non-qualified stock option" as described in Treasury Regulation Section 1.83-7
or any successor regulation thereto and that shall not constitute nor be treated
as an ISO.
2.12. "Option" shall mean any ISO or Non-Qualified Option granted
to an Employee pursuant to the Plan.
2.13. "Participant" shall mean any Employee to whom an Award and/
or an Option is granted under the Plan.
2.14. "Parent of the Company" shall have the meaning set forth in
Section 424(e) of the Code.
2.15. "Subsidiary of the Company" shall have the meaning set forth in
Section 424(f) of the Code, including however for the purposes of Non-Qualified
Options and/or Awards any business trust (to the extent not included within the
meaning of Section 424(f) of the Code) or limited partnership owned 100% by the
Company and/or its other Subsidiaries.
Section 3. Eligibility. Subject to the requirements of Section 5.1
hereof, Awards and/or Options may be granted to any Employee. The Committee
shall have the sole authority to select the persons to whom Awards and/or
Options are to be granted hereunder, and to determine whether a person is to be
granted a Non-Qualified Option, an ISO or an Award or any combination thereof.
No person shall have any right to participate in the
<PAGE>
Plan. Any person selected by the Committee for participation during any one
period will not by virtue of such participation have the right to be selected as
a Participant for any other period.
Section 4. Common Stock Subject to the Plan.
4.1. Number of Shares. The total number of shares of Common Stock for
which options and/or Awards may be granted under the Plan shall not exceed in
the aggregate one million two hundred fifty thousand (1,250,000) shares of
Common Stock (subject to adjustment as provided in Section 8 hereof).
4.2. Reissuance. The shares of Common Stock that may be subject to
options and/or Awards granted under the Plan may be either authorized and
unissued shares or shares reacquired at any time and now or hereafter held as
treasury stock as the Board of Directors may determine. In the event that any
outstanding Option expires or is terminated for any reason, the shares allocable
to the unexercised portion of such Option may again be subject to an Option
and/or Award granted under the Plan. If any shares of Common Stock acquired
pursuant to an Award or the exercise of an Option shall have been repurchased by
the Company, then such shares shall again become available for issuance pursuant
to the Plan.
4.3. Special ISO Limitations.
(a) The aggregate fair market value (determined as of the date an ISO
is granted) of the shares of Common Stock with respect to which IS0s are
exercisable for the first time by an Employee during any calendar year (under
all Incentive Stock Option Plans of the Company or any Parent or Subsidiary of
the Company) shall not exceed $100,000.
(b) No ISO shall be granted to an Employee who, at the time the ISO is
granted, owns (actually or constructively under the provisions of section 424(d)
of the Code) stock possessing more than 10% of the total combined voting power
of all classes of stock of the Company or any Parent or Subsidiary of the
Company, unless the option price is at least 110% of the fair market value
(determined as of the time the ISO is granted) of the shares of Common Stock
subject to the ISO and the ISO by its terms is not exercisable more than five
years from the date it is granted.
4.4. Limitations Not Applicable to Non-Qualified Options or
Awards. Notwithstanding any other provision of the Plan, the provisions of
sections 4.3(a) and (b) shall not apply, nor shall be construed to apply, to any
Non-Qualified Option or Award granted under the Plan.
<PAGE>
Section 5. Administration of the Plan.
5.1. Administration. The Plan shall be administered by a committee of
the Board of Directors (the "Committee") established by the Board of Directors
and consisting of no less than two persons. Upon and after the Effective Date
all members of the Committee shall be "disinterested persons" within the meaning
of Rule 16b-3 promulgated under the Exchange Act. The Committee shall be
appointed from time to time by, and shall serve at the pleasure of, the Board of
Directors.
5.2. Grant of Options/Awards.
(a) The Committee shall have the sole authority and discretion under
the Plan (i) to select the Employees who are to be granted Options hereunder;
(ii) to designate whether any Option to be granted hereunder is to be an ISO or
a Non-Qualified Option; (iii) to establish the number of shares of Common Stock
that may be issued under each Option; (iv) to determine the time and the
conditions subject to which Options may be exercised in whole or in part; (v) to
determine the form of the consideration that may be used to purchase shares of
Common Stock upon exercise of any Option (including the circumstances under
which the Company's issued and outstanding shares of Common Stock may be used by
a Participant to exercise an Option); (vi) to impose restrictions and/or
conditions with respect to shares of Common Stock acquired upon exercise of an
Option; (vii) to determine the circumstances under which shares of Common Stock
acquired upon exercise of any Option may be subject to repurchase by the
Company; (viii) to determine the circumstances and conditions subject to which
shares acquired upon exercise of an Option may be sold or otherwise transferred,
including, without limitation, the circumstances and conditions subject to which
a proposed sale of shares of Common Stock acquired upon exercise of an Option
may be subject to the Company's right of first refusal (as well as the terms and
conditions of any such right of first refusal); (ix) to establish a vesting
provision for any Option relating to the time when (or the circumstances under
which) the Option may be exercised by a Participant, including, without
limitation, vesting provisions that may be contingent upon (A) the Company
meeting specified financial goals, (B) a change of control of the Company or (C)
the occurrence of other specified events; (x) to accelerate the time when
outstanding Options may be exercised, provided, however, that any ISOs shall be
"accelerated" within the meaning of Section 424(h) of the Code; and (xi) to
establish any other terms, restrictions and/or conditions applicable to any
Option not inconsistent with the provisions of the Plan. Notwithstanding
anything in the Plan to the contrary, in no event shall any Option granted to
any director or officer of the Company who is subject to Section 16 of the
Exchange Act become exercisable, in whole or in part, prior to the date that is
six months after the date such Option is granted to such director or officer
unless and to the extent expressly set forth in the
<PAGE>
written option agreement specifying the terms and conditions thereof.
(b) Awards. The Committee shall have the sole authority and discretion
under the Plan (i) to select the Employees who are to be granted Awards
hereunder; (ii) to determine the amount to be paid by a Participant to acquire
shares of Common Stock pursuant to an Award, which amount may be equal to, more
than, or less than 100% of the fair market value of such shares on the date the
Award is granted (but in no event less than the par value of such shares); (iii)
to determine the time or times and the conditions subject to which Awards may be
made; (iv) to determine the time or times and the conditions subject to which
the shares of Common Stock subject to an Award are to become vested and no
longer subject to repurchase by the Company; (v) to establish transfer
restrictions and the terms and conditions on which any such transfer
restrictions with respect to shares of Common Stock acquired pursuant to an
Award shall lapse; (vi) to establish vesting provisions with respect to any
shares of Common Stock subject to an Award, including, without limitation,
vesting provisions which may be contingent upon (A) the Company meeting
specified financial goals, (B) a change of control of the Company or (C) the
occurrence of other specified events; (vii) to determine the circumstances under
which shares of Common Stock acquired pursuant to an Award may be subject to
repurchase by the Company; (viii) to determine the circumstances and conditions
- -subject to which any shares of Common Stock acquired pursuant to an Award may
be sold or otherwise transferred, including, without limitation, the
circumstances and conditions subject to which a proposed sale of shares of
Common Stock acquired pursuant to an Award may be subject to the Company's right
of first refusal (as well as the terms and conditions of any such right of first
refusal); (ix) to determine the form of consideration that may be used to
purchase shares of Common Stock pursuant to an Award (including the
circumstances under which the Company's issued and outstanding shares of Common
Stock may be used by a Participant to purchase the Common Stock subject to an
Award); (x) to accelerate time at which any or all restrictions imposed with
respect to any shares of Common Stock subject to an Award will lapse; and (xi)
to establish any other terms, restrictions and/or conditions applicable to any
Award not inconsistent with the provisions of the Plan.
5.3. Interpretation. The Committee shall be authorized to
interpret the Plan and may, from time to time, adopt such rules and regulations,
not inconsistent with the provisions of the Plan, as it may deem advisable to
carry out the purposes of the Plan.
5.4. Finality. The interpretation and construction by the
Committee of any provision of the Plan, any Option and/or Award granted
hereunder or any agreement evidencing any such Option and/or Award shall be
final and conclusive upon all parties.
<PAGE>
5.5. Voting. Members of the Committee may vote on any matter
affecting the administration of the Plan or the granting of Options and/or
Awards under the Plan.
5.6. Expenses, Etc. All expenses and liabilities incurred by the
Committee in the administration of the Plan shall be borne by the Company. The
Committee may employ attorneys, consultants, accountants or other persons in
connection with the administration of the Plan. The Company, and its officers
and directors, shall be entitled to rely upon the advice, opinions or valuations
of any such persons. No member of the Committee shall be liable for any action,
determination or interpretation taken or made in good faith with respect to the
Plan or any Option and/or Award granted hereunder.
Section 6. Terms and Conditions of Options.
6.1. ISOs. The terms and conditions of each ISO granted under the Plan
shall be specified by the Committee and shall be set forth in an ISO agreement
between the Company and the Participant in such form as the Committee shall
approve. The terms and conditions of each ISO shall be such that each ISO issued
hereunder shall constitute and shall be treated as an "incentive stock option"
as defined in Section 422(b) of the Code. The terms and conditions of any ISO
granted hereunder need not be identical to those of any other ISO granted
hereunder.
The terms and conditions of each ISO shall include the following:
(a) The option price shall be fixed by the Committee but shall in no
event be less than 100% (or 110% in the case of an Employee referred to in
Section 4.3(b) hereof) of the fair market value of the shares of Common Stock
subject to the ISO on the date the ISO is granted. For purposes of the plan, the
fair market value per share of Common Stock as of any day shall mean the average
of the closing prices of sales of shares of Common Stock on all national
securities exchanges on which the Common Stock may at the time be listed or, if
there shall have been no sales on any such day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day the Common Stock shall not be so listed, the average of the
representative bid and asked prices quoted in the NASDAQ system as of 3:30 p.m.,
New York time, on such day, or, if on any day the Common Stock shall not be
quoted in the NASDAQ system, the average of the high and low bid and asked
prices on such day in the over-the-counter market as reported by National
Quotation Bureau Incorporated, or any similar successor organization. If at any
time the Common Stock is not listed on any national securities exchange or
quoted in the NASDAQ system or the over-the-counter market, the fair market
value of the shares of Common Stock subject to an Option on the date the ISO is
granted shall be the fair market value thereof determined in good faith by the
Board of Directors.
<PAGE>
(b) ISOs, by their terms, shall not be transferable otherwise than by
will or the laws of descent and distribution, and, during an Optionee's
lifetime, an ISO shall be exercisable only by the Optionee.
(c) The Committee shall fix the term of all ISOs granted pursuant to
the Plan (including the date on which such ISO shall expire and terminate),
provided, however, that such term shall in no event exceed ten years from the
date on which such ISO is granted (or, in the case of an ISO granted to an
Employee referred to in Section 4.3(b) hereof, such term shall in no event
exceed five years from the date on which such ISO is granted). Each ISO shall be
exercisable in such amount or amounts, under such conditions and at such times
or intervals or in such installments as shall be determined by the Committee in
its sole discretion, provided, however, that in no event shall any ISO granted
to any director or officer of the Company who is subject to Section 16 of the
Exchange Act become exercisable, in whole or in part, prior to the date that is
six months after the date such ISO is granted to such director or officer.
(d) To the extent that the Company or any Parent or Subsidiary of the
Company is required to withhold any federal, state or local taxes in respect of
any compensation income realized by any Participant as a result of any
"disqualifying disposition" of any shares of Common Stock acquired upon exercise
of an ISO granted hereunder, the Company shall deduct from any payments of any
kind otherwise due to such Participant the aggregate amount of such federal,
state or local taxes required to be so withheld or, if such payments are
insufficient to satisfy such federal, state or local taxes, such Participant
will be required to pay to the Company, or make other arrangements satisfactory
to the Company regarding payment to the Company of, the aggregate amount of any
such taxes. All matters with respect to the total amount of taxes to be withheld
in respect of any such compensation income shall be determined by the Board of
Directors in its sole discretion.
(e) In the sole discretion of the Committee the terms and conditions of
any ISO may (but need not) include any of the following provisions:
(i) In the event a Participant shall cease to be employed by
the Company or any Parent or Subsidiary of the Company on a full-time basis for
any reason other than as a result of his death or "disability" (within the
meaning of Section 22(e)(3) of the Code), the unexercised portion of any ISO
held by such Participant at that time may only be exercised within one month
after the date on which the Participant ceased to be so employed, and only to
the extent that the Participant could have otherwise exercised such ISO as of
the date on which he ceased to be so employed.
<PAGE>
(ii) In the event a Participant shall cease to be employed by
the Company or any Parent or Subsidiary of the Company on a full-time basis by
reason of his "disability" (within the meaning of Section 22(e)(3) of the Code),
the unexercised portion of any ISO held by such Participant at that time may
only be exercised within one year after the date on which the Participant ceased
to be so employed, and only to the extent that the Participant could have
otherwise exercised such ISO as of the date on which he ceased to be so
employed.
(iii) In the event a Participant shall die while in the
full-time employ of the Company or a Parent or Subsidiary of the Company (or
within a period of one month after ceasing to be an Employee for any reason
other than his "disability" or within a period of one year after ceasing to be
an Employee by reason of such "disability"), the unexercised portion of any ISO
held by such Participant at the time of his death may only be exercised within
one year after the date of such Participant's death, and only to the extent that
the Participant could have otherwise exercised such ISO at the time of his
death. In such event, such ISO may be exercised by the executor or administrator
of the Participant's estate or by any person or persons who shall have acquired
the ISO directly from the Participant by bequest or inheritance.
6.2. Non-Qualified Options. The terms and conditions of each
Non-Qualified Option granted under the Plan shall be specified by the Committee
in its sole discretion, and shall be set forth in a written option agreement
between the Company and the Participant in such form as the Committee shall
approve. The terms and conditions of each Non-Qualified Option will be such (and
each Non-Qualified Option Agreement shall expressly so state) that each
Non-Qualified Option issued hereunder shall not constitute nor be treated as an
"incentive stock option" as defined in Section 422(b) of the Code but will be a
"nonqualified stock option" for federal, state and local income tax purposes.
The terms and conditions of any Non-Qualified Option granted hereunder need not
be identical to those of any other Non-Qualified Option granted hereunder.
The terms and conditions of each Non-Qualified Option Agreement shall
include the following:
(a) The option (exercise) price shall be fixed by the Committee and may
be equal to, more than or less than 100% of the fair market value of the shares
of Common Stock subject to the Non-Qualified Options on the date such
Non-Qualified Option is granted, provided, however, that the option (exercise)
price shall not be less than the par value of such shares of Common Stock.
(b) The Committee shall fix the term of all Non-Qualified Options
granted pursuant to the Plan (including the date on which such Non-Qualified
Option shall expire and terminate). Such term
<PAGE>
may be more than ten years from the date on which such Non-Qualified Option is
granted. Each Non-Qualified Option shall be exercisable in such amount or
amounts, under such conditions(including provisions governing the rights to
exercise such Non-Qualified Option), and at such times or intervals or in such
installments as shall be determined by the Committee in its sole discretion,
provided, however, that in no event shall any Non-Qualified Option granted to
any director or officer of the Company who is subject to Section 16 of the
Exchange Act become exercisable, in whole or in part, prior to the date that is
six months after the date such Non-Qualified Option is granted to such director
or officer, unless and to the extent expressly set forth in the written option
agreement specifying the terms and conditions thereof.
(c) Non-Qualified Options shall not be transferable otherwise than by
will or the laws of descent and distribution, and during a Participant's
lifetime a Non-Qualified Option shall be exercisable only by the Participant.
(d) To the extent that the Company is required to withhold any federal,
state or local taxes in respect of any compensation income realized by any
Participant in respect of a Non-Qualified Option granted hereunder or in respect
of any shares of Common Stock acquired upon exercise of a Non-Qualified Option,
the Company shall deduct from any payments of any kind otherwise due to such
Participant the aggregate amount of such federal, state or local taxes required
to be so withheld or, if such payments are insufficient to satisfy such federal,
state or local taxes, or if no such payments are due or to become due to such
Participant, then, such Participant will be required to pay to the Company, or
make other arrangements satisfactory to the Company regarding payment to the
Company of, the aggregate amount of any such taxes. All matters with respect to
the total amount of taxes to be withheld in respect of any such compensation
income shall be determined by the Board of Directors in its sole discretion.
7. Terms and Conditions of Awards. The terms and conditions of each
Award granted under the Plan shall be specified by the Committee, in its sole
discretion, and shall be set forth in a written agreement between the
Participant and the Company, in such form as the Committee shall approve. The
terms and provisions of any Award granted hereunder need not be identical to
those of any other Award granted hereunder.
The terms and conditions of each Award shall include the following:
(a) The amount to be paid by a Participant to acquire the shares of
Common Stock pursuant to an Award shall be fixed by the Committee and may be
equal to, more than or less than 100% of the fair market value of the shares of
Common Stock subject to the
<PAGE>
Award on the date the Award is granted (but in no event less than the par value
of such shares).
(b) Each Award shall contain such vesting provisions, such transfer
restrictions and such other restrictions and conditions as the Committee in its
sole discretion, may determine, including, without limitation, the circumstances
under which the Company shall have the right and option to repurchase shares of
Common Stock acquired pursuant to an Award.
(c) Stock certificates representing Common Stock acquired pursuant to
an Award shall bear a legend referring to the restrictions imposed on such Stock
and such other matters as the Committee may determine.
(d) To the extent that the Company is required to withhold any federal,
state or local taxes in respect of any compensation income realized by the
Participant in respect of an Award granted hereunder, or in respect of any
shares acquired pursuant to an Award; or in respect of the vesting of any such
shares of Common Stock, then the Company shall deduct from any payments of any
kind otherwise due to such Participant the aggregate amount of such federal,
state or local taxes required to be so withheld or, if such payments are
insufficient to satisfy such federal, state or local taxes, or if no such
payments are due or to become due to such Participant, then, such Participant
will be required to pay to the Company, or make other arrangements satisfactory
to the Company regarding payment to the Company of, the aggregate amount of any
such taxes. All matters with respect to the total amount of taxes to be withheld
in respect of any such compensation income shall be determined by the Committee
in its sole discretion.
Section 8. Adjustments. In the event that, after the adoption of the
Plan by the Board of Directors, the outstanding shares of the Company's Common
Stock shall be increased or decreased or changed into or exchanged for a
different number or kind of shares of stock or other securities of the Company
or of another corporation through reorganization, merger or consolidation,
recapitalization, reclassification, stock split, split-up, combination or
exchange of shares or declaration of any dividends payable in Common Stock, the
Board of Directors shall appropriately adjust (i) the number of shares of Common
Stock (and the option price per share) subject to the unexercised portion of any
outstanding Option (to the nearest possible full share), provided, however, that
the limitations of Section 424 of the Code shall apply with respect to
adjustments made to ISOs; (ii) the number of shares of Common stock to be
acquired pursuant to an Award which have not become vested, and (iii) the number
of shares of Common Stock for which Options and/or Awards may be granted under
the Plan, as set forth in Section 4.1 hereof, and such adjustments shall be
effective and binding for all purposes of the Plan.
<PAGE>
Section 9. Effect of the Plan on Employment Relationship. Neither the
Plan nor any Option and/or Award granted hereunder to a Participant shall be
construed as conferring upon such Participant any right to continue in the
employ of (or otherwise provide services to) the Company or any Subsidiary or
Parent thereof, or limit in any respect the right of the Company or any
Subsidiary or Parent thereof to terminate such Participant's employment or other
relationship with the Company or any Subsidiary or Parent, as the case may be,
at any time.
Section 10. Amendment of the Plan. The Board of Directors may amend the
Plan from time to time as it deems desirable; provided, however, that, without
the approval of the holders of a majority of the outstanding stock of the
Company entitled to vote thereon at a meeting, the Board of Directors may not
amend the Plan (i) to increase (except for increases due to adjustments in
accordance with Section 8 hereof) the aggregate number of shares of Common Stock
for which Options and/or Awards may be granted hereunder, (ii) to decrease the
minimum exercise price specified by the Plan in respect of ISOs, or (iii) to
change the class of Employees eligible to receive ISOs under the Plan.
Section 11. Termination of the Plan. The Board of Directors may
terminate the Plan at any time. Unless the Plan shall theretofore have been
terminated by the Board of Directors, the Plan shall terminate ten years after
the date of its initial adoption by the Board of Directors. No Option and/or
Award may be granted hereunder after termination of the Plan. The termination or
amendment of the Plan shall not alter or impair any rights or obligations under
any Option and/or Award theretofore granted under the Plan.
Section 12. Effective Date of the Plan. The Plan shall be effective as
of February 4, 1992, the date on which the Plan was adopted by the Board of
Directors of the Company and approved by the holders of all the outstanding
Common Stock of the Company.
<PAGE>
AMENDMENT NO. 1 TO
THE AMENDED AND RESTATED EMCARE HOLDINGS INC.
STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
This Amendment No. 1 to the Amended and Restated EmCare Holdings Inc.
(the "Company") Stock Option and Restricted Stock Purchase Plan is adopted by
the Company's Board of Directors and a majority of the holders of the Company's
Common Stock and Convertible Preferred Stock as of August 17, 1994.
WHEREAS, the Company established the Amended and Restated EmCare
Holdings Inc. Stock Option and Restricted Stock Purchase Plan (the "Plan"), to
promote the interests of the Company and its stockholders by encouraging stock
ownership to attract, retain and motivate the Company's employees and other
persons providing services to the Company, and to encourage such employees and
persons to devote their best efforts to the business and financial success of
the Company; and
WHEREAS, the Company desires to increase the number of shares of Common
Stock available under the Plan;
NOW, THEREFORE, Section 4.1 of the Plan is hereby amended to read in
its entirety, as amended, as follows:
"4.1. Number of Shares. The total number of shares of Common Stock for
which Options and/or Awards may be granted under the Plan shall not
exceed in the aggregate one million five hundred thousand (1,500,000)
shares of Common Stock (subject to adjustment as provided in Section 8
hereof)."
<PAGE>
AMENDMENT NO. 2 TO
THE AMENDED AND RESTATED EMCARE HOLDINGS INC.
STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
This Amendment No. 2 to the Amended and Restated EmCare Holdings Inc.
(the "Company") Stock Option and Restricted Stock Purchase Plan is adopted by
the Company's Board of Directors and a majority of the holders of the Company's
Common Stock as of May 10, 1995.
WHEREAS, the Company established the Amended and Restated EmCare
Holdings Inc. Stock Option and Restricted Stock Purchase Plan (as amended, the
"Plan"), to promote the interests of the Company and its stockholders by
encouraging stock ownership to attract, retain and motivate the Company's
employees and persons to devote their best efforts to the business and financial
success of the Company; and
WHEREAS, the Company desires to increase the number of shares of Common
Stock available under the Plan;
NOW, THEREFORE, Section 4.1 of the Plan is hereby amended to read in
its entirety, as amended, as follows:
"4.1. Number of Shares. The total number of shares of Common Stock for
which Options and/or Awards may be granted under the Plan shall not
exceed in the aggregate one million two hundred and fifty thousand
(1,250,000) shares of Common Stock (subject to adjustment as provided
in Section 8 hereof)."
<PAGE>
AMENDMENT NO. 3 TO
THE AMENDED AND RESTATED EMCARE HOLDINGS INC.
STOCK OPTION AND RESTRICTED STOCK PURCHASE PLAN
This Amendment No. 3 to the Amended and Restated EmCare Holdings Inc.
(the "Company") Stock Option and Restricted Stock Purchase Plan is effective as
of May 16, 1996.
WHEREAS, the Company established the Amended and Restated EmCare
Holdings Inc. Stock Option and Restricted Stock Purchase Plan (as amended, the
"Plan"), to promote the interests of the Company and its stockholders by
encouraging stock ownership to attract, retain and motivate the Company's
employees and persons to devote their best efforts to the business and financial
success of the Company; and
WHEREAS, the Company desires to increase the number of the shares of
Common Stock available under the Plan; and
WHEREAS, the Company established the Plan to compensate its officers
and key employees through the issuance of non-qualified stock options, which,
upon exercise, would provide the Company with a deduction for federal income
taxes for compensation paid to the exercising employee in an amount equal to the
difference between the fair market value of the shares of Common Stock issued
pursuant to the option and the exercise price of the option; and
WHEREAS, Section 162(m) was recently added to the Internal Revenue Code
of 1986 (as amended, the "Code") to disallow deductions for compensation paid in
excess of one million dollars ($1,000,000) to Covered Employees (as defined in
Section 162(m) of the Code) unless such compensation qualifies as qualified
performance-based compensation (as defined in the regulations to Section 162(m)
of the Code); and
WHEREAS, the Company wishes to protect and insure the continued
deductibility of any compensation paid to Covered Employees through the issuance
of non-qualified stock options by complying with the requirements of the
qualified performance-based compensation exception to Section 162(m) of the
Code;
NOW, THEREFORE, the following amendments are made to the Plan:
Section 2.6.1 is hereby added to the Plan to read in its entirety as follows:
"2.6.1. "Covered Employee" shall have the meaning
set forth in Section 162(m)(3) of the Code."
Section 4.1 of the Plan is hereby amended to read in its entirety, as amended,
as follows:
<PAGE>
"4.1. Number of Shares. The total number of
shares of Common Stock for which Options and/or Awards may be granted under the
Plan shall not exceed in the aggregate three million two hundred fifty thousand
(3,250,000) shares of Common Stock (subject to adjustment as provided in Section
8 hereof)."
Section 5.1 of the Plan is hereby amended to read in its entirety, as amended,
as follows:
"5.1. Administration. The Plan shall be administered by a
committee of the Board of Directors (the "Committee") established by
the Board of Directors and consisting of no less than two persons. Upon
and after the Effective Date all members of the Committee shall be
"disinterested persons" within the meaning of Rule 16b-3 promulgated
under the Exchange Act, and shall qualify as "outside directors" as
defined in Section 1.162-27(e)(3) of the regulations to Section 162(m)
of the Code. The Committee shall be appointed from time to time by, and
shall serve at the pleasure of, the Board of Directors."
Section 5.2.(a) of the Plan is hereby amended to read in its entirety, as
amended, as follows:
"5.2. Grant of Options/Awards.
(a) The Committee shall have the sole authority and discretion
under the Plan (i) to select the Employees who are to be granted
Options hereunder; (ii) to designate whether any Option to be granted
hereunder is to be an ISO or a Non-Qualified Option; (iii) to establish
the number of shares of Common Stock that may be issued under each
Option, provided that the maximum number of shares of Common Stock with
respect to which Options may be granted to any employee in any given
year shall be limited to 250,000 shares; (iv) to determine the time and
the conditions subject to which Options may be exercised in whole or in
part; (v) to determine the form of the consideration that may be used
to purchase shares of Common Stock upon exercise of any Option
(including the circumstances under which the Company's issued and
outstanding shares of Common Stock may be used by a Participant to
exercise an Option); (vi) to impose restrictions and/or conditions with
respect to shares of Common Stock acquired upon exercise of an Option;
(vii) to determine the circumstances under which shares of Common Stock
acquired upon exercise of any Option may be subject to repurchase by
the Company; (viii) to determine the circumstances and conditions
subject to which shares acquired upon exercise of an Option may be sold
or otherwise transferred, including, without limitation, the
circumstances and conditions subject to which a proposed sale of shares
of Common Stock acquired upon exercise of an Option may be subject to
the Company's right of first refusal (as well as the terms and
conditions of any such right of first refusal); (ix) to establish a
vesting provision for any Option relating to the time when (or the
circumstances under which) the Option may be exercised by a
Participant, including, without limitation, vesting provisions that may
be contingent upon (A) the Company meeting specified financial goals,
(B) a change of control of the Company or (C) the occurrence of other
specified events; (x) to accelerate the time when outstanding Options
<PAGE>
may be exercised, provided, however, that any ISOs shall be
"accelerated" within the meaning of Section 424(h) of the Code; and
(xi) to establish any other terms, restrictions and/or conditions
applicable to any Option not inconsistent with the provisions of the
Plan. Notwithstanding anything in the Plan to the contrary, in no event
shall any Option granted to any director or officer of the Company who
is subject to Section 16 of the Exchange Act become exercisable, in
whole or in part, prior to the date that is six months after the date
such Option is granted to such director or officer unless and to the
extent expressly set forth in the written option agreement specifying
the terms and conditions thereof."
Section 5.2.(c) is hereby added to the Plan to read in its entirety as follows:
"5.2. Grant of Options/Awards.
(c) Notwithstanding anything in the Plan to the contrary, in
no event shall the number of options issued by the Committee to any
Covered Employee in any given year exceed 250,000 options. Options
which are canceled or forfeited are counted against the maximum number
of options issuable for the purposes of this calculation. For options
which are repriced, the repricing transaction shall be treated as a
cancellation of the original option and an additional grant of the
repriced option, with both options being counted against the maximum
number of options which may be issued under this provision."
September 27, 1996
(214) 698-3100 2468-00033
EmCare Holdings Inc.
1717 Main Street, Suite 5200
Dallas, Texas 75201
Re: EmCare Holdings Inc. Amended and Restated Stock Option and
Restricted Stock Purchase Plan, as amended (the "Plan")
Ladies and Gentlemen:
We have acted as special counsel to EmCare Holdings Inc., a Delaware
corporation (the "Company"), in connection with its filing of a Form S-8 (the
"Form S-8") with the Securities and Exchange Commission (the "Commission") on or
about the date of this opinion letter. We are rendering this opinion letter to
you pursuant to Regulation S-K 601(b)(5) promulgated by the Commission.
A. Documents Examined. In preparing this opinion letter, we
examined the Plan and such other agreements, certificates, and documents as we
deemed appropriate to enable us to render the opinion expressed below.
B. Assumptions, Limitations, and Qualifications. The opinion
expressed below is based upon, and subject to, the following assumptions,
limitations, and qualifications:
1. Questions of Fact. With respect to questions of fact,
we have relied exclusively upon: (a) certificates and assurances of
public officials, and (b) certificates and assurances of officers of
the Company. In each such case, we have not independently verified the
accuracy or completeness of such questions of fact.
2. Issuance of Shares. Any issuance of shares of the Company's
Common Stock, par value $.01 per share (the "Common Stock"), under the
Plan will be in
<PAGE>
September 27, 1997
Page 2
accordance with the provisions of the Plan. In addition, the
Company will receive in exchange for each share of Common Stock issued
under the Plan a cash payment of no less than such share's par value.
Finally, the opinion expressed below covers only shares of Common
Stock issued under the Plan after the filing of the Form S-8 with
the Commission.
3. Reservation of Shares. At the time of the issuance of
any shares of Common Stock under the Plan, the Company will continue to
have a sufficient number of authorized but unissued shares of Common
Stock available to issue such shares.
4. Laws Covered. We are licensed to practice law in the State
of Texas. As we are generally familiar with the Delaware General
Corporation Law, however, we did not consider obtaining special
Delaware counsel to be necessary to render the opinion expressed below.
Accordingly, this opinion letter is limited to the effect of the
present state of the substantive laws of the State of Texas and the
Delaware General Corporation Law.
C. Opinion. Based upon and subject to the foregoing, we are of
the opinion that upon the issuance of the shares of Common Stock contemplated by
the Form S-8, such shares will be validly issued,fully paid, and non-assessable.
* * *
This opinion letter and the matters addressed in this letter are as of
the date of this letter. We hereby disclaim any obligation to advise you of any
change in any matter set forth in this letter occurring after such date. This
opinion letter is also limited to the matters stated in this letter and no
opinion is implied or may be inferred beyond the opinions expressly stated.
This opinion letter is solely for your benefit and no other person may
rely upon the opinions expressed in this letter. Without our prior written
consent, this letter may not be quoted in whole or in part or otherwise referred
to in any document and may not be furnished to any other person. We hereby
consent to the inclusion of this opinion letter as an exhibit to the Form S-8.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8, dated on September 27, 1996) pertaining to the EmCare Holdings Inc. Amended
and Restated Stock Option and Restricted Stock Purchase Plan of our report dated
February 9, 1996, except Note 5, as to which the date is February 20, 1996, with
respect to the consolidated financial statements and schedules of EmCare
Holdings Inc. incorporated by reference in its Annual Report (Form 10-K) for the
year ended December 31, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Dallas, Texas
September 25, 1996
