<PAGE> 1
As filed with the Securities and Exchange Commission on November 5, 1996
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
SELFCARE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 04-3164127
(State of Incorporation) (I.R.S. Employer Identification Number)
200 PROSPECT STREET
WALTHAM, MASSACHUSETTS 02154
(617) 647-3900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
SELFCARE, INC. AMENDED AND RESTATED 1996 STOCK OPTION AND GRANT PLAN
SELFCARE, INC. 1994 INCENTIVE AND NON-QUALIFIED STOCK OPTION PLAN
SELFCARE, INC. 1992 STOCK PLAN
(Full Title of the Plans)
------------------------------------
RON ZWANZIGER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
SELFCARE, INC.
200 PROSPECT STREET
WALTHAM, MASSACHUSETTS 02154
(617) 647-3900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
With a copy to:
Stephen W. Carr, P.C.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
-----------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
================================================================================================================================
Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Registered (1) Price Per Share Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001
per share 277,602 $1.15 $ 319,242.30 $ 96.74
518,037 $1.54 $ 797,776.98 $ 241.76
2,108,405 $2.53 $ 5,334,254.65 $ 1,616.44
104,000 $3.46 $ 359,840.00 $ 109.04
192,400 $3.69 $ 709,956.00 $ 215.14
104,000 $3.85 $ 400,400.00 $ 121.33
78,000 $4.62 $ 360,360.00 $ 109.20
48,000 $8.50 $ 408,000.00 $ 123.64
79,000 $8.75 $ 691,250.00 $ 209.47
75,000 $9.00 $ 675,000.00 $ 204.55
798,000 $15.00(2) $ 11,970,000.00 $ 3,627.27
================================================================================================================================
<FN>
(1) Plus such additional number of shares as may be required pursuant to the Selfcare, Inc. Amended and Restated 1996 Stock
Option and Grant Plan, Selfcare, Inc. 1994 Incentive and Non-Qualified Stock Option Plan or Selfcare, Inc. 1992 Stock Plan
in the event of a stock dividend, reverse stock split, split-up, recapitalization or other similar event.
(2) This estimate is based on the average of the high and low sales prices on the American Stock Exchange of the Common Stock
of Selfcare, Inc. on November 1, 1996 pursuant to Rules 457(c) and (h) under the Securities Act of 1933, as amended,
solely for purposes of determining the registration fee.
</TABLE>
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
Selfcare, Inc. (the "Company") hereby incorporates by reference the
documents listed in (a) through (c) below, which have previously been filed with
the Securities and Exchange Commission.
(a) The Company's prospectus, containing audited financial statements
for the fiscal year ended December 31, 1995, filed with the
Securities and Exchange Commission pursuant to Rule 424(b)
promulgated under the Securities Act of 1933, as amended (the
"Securities Act"), on August 6, 1996;
(b) All other reports filed since August 5, 1996 pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); and
(c) The description of the Company's common stock contained in its
Registration Statement on Form 8-A, filed with the Securities and
Exchange Commission on June 14, 1996, as amended, under Section
12 of the Exchange Act and any amendments or reports filed for
the purpose of updating such description.
In addition, all documents subsequently filed with the Securities and
Exchange Commission by the Company pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a post-effective amendment
hereto which indicates that all securities offered hereunder have been sold or
that 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.
--------------------------------------
The legality of the shares of Common Stock registered by the Company
hereby will be passed upon for the Company by Goodwin, Procter & Hoar LLP,
Boston, Massachusetts. The president of a professional corporation which is a
partner in the firm of Goodwin, Procter & Hoar LLP beneficially owns an
aggregate of approximately 40,664 shares of Common Stock and warrants to
purchase up to 5,278 shares of Common Stock at an exercise price of $2.53 per
share.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Certificate of Incorporation contains a provision permitted by
Delaware law that generally eliminates the personal liability of directors for
monetary damages for breaches of their fiduciary duty, including breaches
involving negligence or gross negligence in business combinations, unless the
director has breached his or her duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or a knowing violation of law, paid a dividend
or approved a stock repurchase in violation of the Delaware General Corporation
Law or obtained an improper personal benefit. This provision does not alter a
Director's liability under the federal securities laws. In addition, this
provision does not affect the availability of equitable remedies, such as an
injunction or rescission, for breach of fiduciary duty. The Company believes
that this provision will assist the Company in attracting and retaining
qualified individuals to serve as directors.
The By-laws of the Company provide that directors and officers of the
Company shall be, and in the discretion of the Board of Directors, non-officer
employees may be, indemnified by the Company to the fullest extent authorized by
Delaware law, as it now exists or may in the future be amended, against all
expenses and liabilities reasonably incurred in connection with service for or
on behalf of the Company. The By-laws of the Company also provide that the right
of directors and officers to indemnification shall be a contract right and shall
not be exclusive of any other right now possessed or hereafter acquired under
any by-law, agreement, vote of stockholders or otherwise.
<PAGE> 3
The Company carries directors' and officers' liability insurance
covering its directors and officers.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibits
- --------
4.1 Selfcare, Inc. Amended and Restated 1996 Stock Option and Grant
Plan.
*4.2 Selfcare, Inc. 1994 Incentive and Non-Qualified Stock Option Plan
*4.3 Selfcare, Inc. 1992 Stock Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (to be included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Powers of Attorney (included on page 4 of this registration
statement).
* Incorporated by reference to the relevant exhibit to Selfcare,
Inc.'s registration statement on Form SB-2 (File No. 333-4830-NY)
as filed with the Commission on May 17, 1996.
Item 9. Undertakings.
------------
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(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 registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions,
2
<PAGE> 4
or otherwise, the registrant 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 registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
3
<PAGE> 5
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
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 Waltham, Commonwealth of Massachusetts, on November
4, 1996.
SELFCARE, INC.
By: /s/ Ron Zwanziger
--------------------------------------
Ron Zwanziger
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Selfcare, Inc. hereby severally constitute Ron Zwanziger, Anthony
H. Hall and Kenneth D. Legg, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the registration statement filed
herewith and any and all amendments to said registration statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Selfcare, Inc. to comply with the provisions of the
Securities Act of 1933 and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may be signed
by our said attorneys, or any of them, to said registration statement and any
and all amendments thereto.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ Ron Zwanziger Director, President and November 4, 1996
- --------------------------- Chief Executive Officer
Ron Zwanziger (Principal Executive Officer)
/s/ Anthony H. Hall Chief Financial Officer (Principal Financial November 4, 1996
- --------------------------- Officer and Principal Accounting Officer)
Anthony H. Hall
/s/ Jonathan J. Fleming Director November 4, 1996
- ---------------------------
Jonathan J. Fleming
/s/ Carol R. Goldberg Director November 4, 1996
- ---------------------------
Carol R. Goldberg
/s/ Edward B. Roberts Director November 4, 1996
- ---------------------------
Edward B. Roberts
/s/ Willard Lee Umphrey Director November 4, 1996
- ---------------------------
Willard Lee Umphrey
/s/ John Levy Director November 4, 1996
- ---------------------------
John Levy
/s/ Peter Townsend Director November 4, 1996
- ---------------------------
Peter Townsend
</TABLE>
4
<PAGE> 6
<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit No. Description Page**
- ----------- ----------- ------
<S> <C>
4.1 Selfcare, Inc. Amended and Restated 1996 Stock Option and Grant
Plan.
*4.2 Selfcare, Inc. 1994 Incentive and Non-Qualified Stock Option Plan
*4.3 Selfcare, Inc. 1992 Stock Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (to be included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Public Accountants.
24.1 Powers of Attorney (included on page 4 of this registration statement).
<FN>
- --------------------
* Incorporated by reference to the relevant exhibit to Selfcare,
Inc.'s registration statement on Form SB-2 (File No. 333-4830-NY)
as filed with the Commission on May 17, 1996.
** Refers to sequentially numbered copy.
</TABLE>
5
<PAGE> 1
Exhibit 4.1
-----------
SELFCARE, INC.
AMENDED AND RESTATED 1996 STOCK OPTION AND GRANT PLAN
SECTION 1. GENERAL PURPOSE OF THE PLAN; DEFINITIONS
----------------------------------------
The name of the plan is the Selfcare, Inc. Amended and Restated 1996
Stock Option and Grant Plan (the "Plan"). The purpose of the Plan is to
encourage and enable the officers, employees, Directors and other key persons of
Selfcare, Inc. (the "Company") and its Subsidiaries upon whose judgment,
initiative and efforts the Company largely depends for the successful conduct of
its business to acquire a proprietary interest in the Company. It is anticipated
that providing such persons with a direct stake in the Company's welfare will
assure a closer identification of their interests with those of the Company,
thereby stimulating their efforts on the Company's behalf and strengthening
their desire to remain with the Company.
The following terms shall be defined as set forth below:
"Act" means the Securities Exchange Act of 1934, as amended.
"Administrator" means the Board or the Committee.
"Award" or "Awards," except where referring to a particular category of
grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock
Options, Stock Appreciation Rights, Restricted Stock Awards, Unrestricted Stock
Awards, Performance Share Awards and Dividend Equivalent Rights.
"Board" means the Board of Directors of the Company.
"Cause" as such term relates to the termination of any person means the
occurrence of one or more of the following: (i) such person is convicted of,
pleads guilty to, or confesses to any felony or any act of fraud,
misappropriation or embezzlement which has an immediate and materially adverse
effect on the Company or any Subsidiary, as determined by the Board in good
faith in its sole discretion, (ii) such person engages in a fraudulent act to
the material damage or prejudice of the Company or any Subsidiary or in conduct
or activities materially damaging to the property, business or reputation of the
Company or any Subsidiary, all as determined by the Board in good faith in its
sole discretion, (iii) any material act or omission by such person involving
malfeasance or negligence in the performance of such person's duties to the
Company or any Subsidiary to the material detriment of the Company or any
Subsidiary, as determined by the Board in good faith in its sole discretion,
which has not been corrected by such person to the satisfaction of the Board
within 30 days after written notice from the Company of any such act or
omission, (iv) failure by such person to comply in any material respect with the
terms of his employment agreement, if any, or any written policies or directives
of the Board as determined by the Board in good faith in its sole discretion,
which
<PAGE> 2
has not been corrected by such person to the satisfaction of the Board within 30
days after written notice from the Company of such failure, or (v) material
breach by such person of his noncompetition agreement with the Company, if any,
as determined by the Board in good faith in its sole discretion.
"Change of Control" is defined in Section 15.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor Code, and related rules, regulations and interpretations.
"Committee" means a committee of two or more Non-Employee Directors
appointed by the Board to administer the Plan.
"Disability" means an individual's inability to perform his normal
required services for the Company and its Subsidiaries for a period of six
consecutive months by reason of the individual's mental or physical disability,
as determined by the Administrator in good faith in its sole discretion.
"Dividend Equivalent Right" means Awards granted pursuant to Section
10.
"Effective Date" means the date on which the Plan is approved by
stockholders as set forth in Section 17.
"Fair Market Value" on any given date means the last reported sale
price at which Stock is traded on such date or, if no Stock is traded on such
date, the next preceding date on which Stock was traded, as reflected on the
principal stock exchange or, if applicable, any other national stock exchange on
which the Stock is traded or admitted to trading.
"Incentive Stock Option" means any Stock Option designated and
qualified as an "incentive stock option" as defined in Section 422 of the Code.
"Independent Director" means a member of the Board who is not also an
employee of the Company or any Subsidiary.
"Non-Employee Director" means any Independent Director who is both a
"Non-Employee Director" within the meaning of Rule 16b-3(b)(3)(i) promulgated
under the Act, or any successor definition under said rule, and an "outside
director" within the meaning of Section 162(m) of the Code and the regulations
promulgated thereunder.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Option" or "Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 5.
2
<PAGE> 3
"Performance Share Award" means Awards granted pursuant to Section 9.
"Restricted Stock Award" means Awards granted pursuant to Section 7.
"Retirement" means the employee's termination of employment with the
Company and its Subsidiaries after attainment of age 65 or attainment of age 55
and completion of 10 years of employment.
"Stock" means the Common Stock, par value $.001 per share, of the
Company, subject to adjustments pursuant to Section 3.
"Stock Appreciation Right" means any Award granted pursuant to Section
6.
"Subsidiary" means any corporation or other entity (other than the
Company) in any unbroken chain of corporations or other entities, beginning with
the Company if each of the corporations or entities (other than the last
corporation or entity in the unbroken chain) owns stock or other interests
possessing 50% or more of the economic interest or the total combined voting
power of all classes of stock or other interests in one of the other
corporations or entities in the chain.
"Unrestricted Stock Award" means any Award granted pursuant to Section
8.
SECTION 2. ADMINISTRATION OF PLAN; AUTHORITY TO SELECT PARTICIPANTS AND
------------------------------------------------------------
DETERMINE AWARDS
----------------
(a) POWERS OF ADMINISTRATOR. The Administrator shall have the
power and authority to grant Awards consistent with the terms of the Plan,
including the power and authority:
(i) to select the officers, employees, Directors and
other key persons of the Company and its Subsidiaries to whom Awards
may from time to time be granted;
(ii) to determine the time or times of grant, and the
extent, if any, of Incentive Stock Options, Non-Qualified Stock
Options, Stock Appreciation Rights, Restricted Stock Awards,
Unrestricted Stock Awards, Performance Share Awards and Dividend
Equivalent Rights, or any combination of the foregoing, granted to any
one or more participants;
(iii) to determine the number of shares of Stock to be
covered by any Award;
(iv) to determine and modify from time to time the terms
and conditions, including restrictions, not inconsistent with the terms
of the Plan, of any Award, which terms and conditions may differ among
individual Awards and participants, and to approve the form of written
instruments evidencing the Awards;
3
<PAGE> 4
(v) to accelerate at any time the exercisability or
vesting of all or any portion of any Award;
(vi) subject to the provisions of Section 5(a)(iii), to
extend at any time the period in which Stock Options may be exercised;
(vii) to determine at any time whether, to what extent, and
under what circumstances Stock and other amounts payable with respect
to an Award shall be deferred either automatically or at the election
of the participant and whether and to what extent the Company shall pay
or credit amounts constituting interest (at rates determined by the
Administrator) or dividends or deemed dividends on such deferrals; and
(viii) at any time to adopt, alter and repeal such rules,
guidelines and practices for administration of the Plan and for its own
acts and proceedings as it shall deem advisable; to interpret the terms
and provisions of the Plan and any Award (including related written
instruments); to make all determinations it deems advisable for the
administration of the Plan; to decide all disputes arising in
connection with the Plan; and to otherwise supervise the administration
of the Plan.
All decisions and interpretations of the Administrator shall be binding
on all persons, including the Company and Plan participants.
(b) DELEGATION OF AUTHORITY TO GRANT AWARDS. The Administrator,
in its discretion, may delegate to the Chief Executive Officer of the Company
all or part of the Administrator's authority and duties with respect to Awards,
including the granting thereof, to individuals who are not subject to the
reporting and other provisions of Section 16 of the Act or "covered employees"
within the meaning of Section 162(m) of the Code. The Administrator may revoke
or amend the terms of a delegation at any time but such action shall not
invalidate any prior actions of the Administrator's delegate or delegates that
were consistent with the terms of the Plan.
SECTION 3. STOCK ISSUABLE UNDER THE PLAN; MERGERS; SUBSTITUTION
----------------------------------------------------
(a) STOCK ISSUABLE. The maximum number of shares of Stock reserved
and available for issuance under the Plan shall be 1,000,000 shares. For
purposes of this limitation, the shares of Stock underlying any Awards which are
forfeited, canceled, reacquired by the Company, satisfied without the issuance
of Stock or otherwise terminated (other than by exercise) shall be added back to
the shares of Stock available for issuance under the Plan. Subject to such
overall limitation, shares of Stock may be issued up to such maximum number
pursuant to any type or types of Award; provided, however, that Stock Options or
Stock Appreciation Rights with respect to no more than 500,000 shares of Stock
may be granted to any one individual participant during any one calendar year
period. The shares available for issuance under the Plan may be authorized but
unissued shares of Stock or
4
<PAGE> 5
shares of Stock reacquired by the Company. Upon the exercise of a Stock
Appreciation Right settled in shares of Stock, the right to purchase an equal
number of shares of Stock covered by a related Stock Option, if any, shall be
deemed to have been surrendered and will no longer be exercisable, and said
number of shares of Stock shall no longer be available under the Plan.
(b) RECAPITALIZATIONS. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of the Company,
reorganization, recapitalization, reclassification, stock dividend, stock split,
reverse stock split or other similar transaction, the outstanding shares of
Stock are increased or decreased or are exchanged for a different number or kind
of shares or other securities of the Company, or additional shares or new or
different shares or other securities of the Company or other non-cash assets are
distributed with respect to such shares of Stock or other securities, the
Administrator shall make an appropriate or proportionate adjustment in (i) the
maximum number of shares reserved for issuance under the Plan, (ii) the number
of Stock Options or Stock Appreciation Rights that can be granted to any one
individual participant, (iii) the number and kind of shares or other securities
subject to any then outstanding Awards under the Plan, and (iv) the price for
each share subject to any then outstanding Stock Options and Stock Appreciation
Rights under the Plan, without changing the aggregate exercise price (i.e., the
exercise price multiplied by the number of Stock Options and Stock Appreciation
Rights) as to which such Stock Options and Stock Appreciation Rights remain
exercisable. The adjustment by the Administrator shall be final, binding and
conclusive. No fractional shares of Stock shall be issued under the Plan
resulting from any such adjustment, but the Administrator in its discretion may
make a cash payment in lieu of fractional shares.
(c) MERGERS. Upon consummation of a consolidation or merger or
sale of all or substantially all of the assets of the Company in which
outstanding shares of Stock are exchanged for securities, cash or other property
of an unrelated corporation or business entity or in the event of a liquidation
of the Company, the Board, or the board of directors of any corporation assuming
the obligations of the Company, may, in its discretion, take any one or more of
the following actions, as to outstanding Stock Options and Stock Appreciation
Rights: (i) provide that such Stock Options shall be assumed or equivalent
options shall be substituted, by the acquiring or succeeding corporation (or an
affiliate thereof), (ii) upon written notice to the optionees, provide that all
unexercised Stock Options and Stock Appreciation Rights will terminate
immediately prior to the consummation of such transaction unless exercised by
the optionee within a specified period following the date of such notice, and/or
(iii) in the event of a business combination under the terms of which holders of
the Stock of the Company will receive upon consummation thereof a cash payment
for each share surrendered in the business combination, make or provide for a
cash payment to the optionees equal to the difference between (A) the value (as
determined by the Administrator) of the consideration payable per share of Stock
pursuant to the business combination (the "Merger Price") times the number of
shares of Stock subject to such outstanding Stock Options and Stock Appreciation
Rights (to the extent then exercisable at prices not in excess of the Merger
Price) and (B) the aggregate exercise price of all such outstanding Stock
Options and Stock Appreciation Rights in exchange for the termination of such
Stock Options and Stock Appreciation Rights.
5
<PAGE> 6
(d) SUBSTITUTE AWARDS. The Administrator may grant Awards under
the Plan in substitution for stock and stock based awards held by employees of
another corporation who become employees of the Company or a Subsidiary as the
result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary or the acquisition by the Company or a Subsidiary of
property or stock of the employing corporation. The Administrator may direct
that the substitute awards be granted on such terms and conditions as the
Administrator considers appropriate in the circumstances.
SECTION 4. ELIGIBILITY
-----------
Participants in the Plan will be such full or part-time officers, other
employees, Directors and other key persons of the Company and its Subsidiaries
who are responsible for or contribute to the management, growth or profitability
of the Company and its Subsidiaries as are selected from time to time by the
Administrator, in its sole discretion.
SECTION 5. STOCK OPTIONS
-------------
Any Stock Option granted under the Plan shall be in such form as the
Administrator may from time to time approve.
Stock Options granted under the Plan may be either Incentive Stock
Options or Non-Qualified Stock Options. Incentive Stock Options may be granted
only to employees of the Company or any Subsidiary that is a "subsidiary
corporation" within the meaning of Section 424(f) of the Code. To the extent
that any Option does not qualify as an Incentive Stock Option, it shall be
deemed a Non-Qualified Stock Option.
No Incentive Stock Option shall be granted under the Plan after June
14, 2006.
(a) TERMS AND CONDITIONS OF STOCK OPTIONS. The Administrator in
its discretion may grant Stock Options subject to the following terms and
conditions and such additional terms and conditions, not inconsistent with the
terms of the Plan, as the Administrator shall deem desirable:
(i) EXERCISE PRICE. The exercise price per share for the
Stock covered by a Stock Option granted pursuant to this Section 5(a)
shall be determined by the Administrator at the time of grant but shall
not be less than 100% of the Fair Market Value on the date of grant in
the case of Incentive Stock Options, or 85% of the Fair Market Value on
the date of grant, in the case of Non-Qualified Stock Options.
Notwithstanding the foregoing, with respect to Non-Qualified Stock
Options which are granted in lieu of compensation, the exercise price
per share shall not be less than 50% of the Fair Market Value on the
date of grant. If an employee owns or is deemed to own (by reason of
the attribution rules of Section 424(d) of the Code) more than 10% of
the combined voting power of all classes of stock of the Company or any
parent or subsidiary corporation and an Incentive Stock Option is
granted to such employee, the
6
<PAGE> 7
option price of such Incentive Stock Option shall be not less than 110%
of the Fair Market Value on the grant date.
(ii) GRANT OF DISCOUNT OPTIONS IN LIEU OF CASH BONUS. Upon
the request of a participant and with the consent of the Administrator,
such participant may elect each calendar year to receive a
Non-Qualified Stock Option in lieu of specified compensation to which
he may become entitled during the following calendar year pursuant to
any other plan or arrangement of the Company, but only if such
participant makes an advance election to waive receipt of all or a
portion of such compensation. Such election shall be made on or before
the date set by the Administrator which date generally shall be no
later than 15 days (or such shorter period permitted by the
Administrator) preceding January 1 of the calendar year for which the
compensation would otherwise be paid. A Non-Qualified Stock Option
shall be granted to each employee who made such an election on the date
the waived compensation would otherwise be paid. The exercise price per
share shall be determined by the Administrator but shall not be less
than 50% of the Fair Market Value of the Stock on the date the Stock
Option is granted. The number of shares of Stock subject to the Stock
Option shall be determined by dividing the amount of the waived
compensation by the difference between the Fair Market Value of the
Stock on the date the Stock Option is granted and the exercise price
per Stock Option. The Stock Option shall be granted for whole number of
shares so determined; the value of any fractional share shall be paid
in cash.
(iii) OPTION TERM. The term of each Stock Option shall be
fixed by the Administrator, but no Incentive Stock Option shall be
exercisable more than ten years after the date the option is granted.
If an employee owns or is deemed to own (by reason of the attribution
rules of Section 424(d) of the Code) more than 10% of the combined
voting power of all classes of stock of the Company or any parent or
subsidiary corporation and an Incentive Stock Option is granted to such
employee, the term of such option shall be no more than five years from
the date of grant.
(iv) EXERCISABILITY; RIGHTS OF A STOCKHOLDER. Stock
Options shall become vested and exercisable at such time or times,
whether or not in installments, as shall be determined by the
Administrator at or after the grant date; provided, however, that Stock
Options granted in lieu of compensation shall be exercisable in full as
of the grant date. The Administrator may at any time accelerate the
exercisability of all or any portion of any Stock Option. An optionee
shall have the rights of a stockholder only as to shares acquired upon
the exercise of a Stock Option and not as to unexercised Stock Options.
(v) METHOD OF EXERCISE. Stock Options may be exercised in
whole or in part, by giving written notice of exercise to the Company,
specifying the number of shares to be purchased. Payment of the
purchase price may be made by one or more of the following methods:
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(A) In cash, by certified or bank check or other
instrument acceptable to the Administrator;
(B) In the form of shares of Stock that are not
then subject to restrictions under any Company plan and that
have been beneficially owned by the optionee for at least six
months, if permitted by the Administrator in its discretion.
Such surrendered shares shall be valued at Fair Market Value
on the exercise date; or
(C) By the optionee delivering to the Company a
properly executed exercise notice together with irrevocable
instructions to a broker to promptly deliver to the Company
cash or a check payable and acceptable to the Company to pay
the purchase price; provided that in the event the optionee
chooses to pay the purchase price as so provided, the optionee
and the broker shall comply with such procedures and enter
into such agreements of indemnity and other agreements as the
Administrator shall prescribe as a condition of such payment
procedure.
Payment instruments will be received subject to collection. The
delivery of certificates representing the shares of Stock to be
purchased pursuant to the exercise of a Stock Option will be contingent
upon receipt from the optionee (or a purchaser acting in his stead in
accordance with the provisions of the Stock Option) by the Company of
the full purchase price for such shares and the fulfillment of any
other requirements contained in the Stock Option or applicable
provisions of laws.
(vi) TERMINATION BY REASON OF DEATH. Any Stock Option held
by an optionee whose employment by (or other business relationship
with) the Company and its Subsidiaries is terminated by reason of death
shall become fully exercisable and may thereafter be exercised by the
legal representative or legatee of the optionee, for a period of 12
months (or such longer period as the Administrator shall specify at any
time) from the date of death, or until the expiration of the stated
term of the Option, if earlier.
(vii) Termination by Reason of Disability.
------------------------------------
(A) Any Stock Option held by an optionee whose
employment by (or other business relationship with) the
Company and its Subsidiaries is terminated by reason of
Disability shall become fully exercisable and may thereafter
be exercised, for a period of 12 months (or such longer period
as the Administrator shall specify at any time) from the date
of such termination of employment (or business relationship),
or until the expiration of the stated term of the Option, if
earlier.
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(B) The Administrator shall have sole authority
and discretion to determine whether a participant's employment
(or business relationship) has been terminated by reason of
Disability.
(C) Except as otherwise provided by the
Administrator at any time, the death of an optionee during the
period provided in this Section 5(a)(vii) for the exercise of
a Stock Option shall extend such period for 12 months from the
date of death, subject to termination on the expiration of the
stated term of the Option, if earlier.
(viii) Termination by Reason of Retirement.
------------------------------------
(A) Any Stock Option held by an optionee whose
employment by (or business relationship with) the Company and
its Subsidiaries is terminated by reason of Retirement may
thereafter be exercised, to the extent it was exercisable at
the time of such termination, for a period of 12 months (or
such other period as the Administrator shall specify at any
time) from the date of such termination of employment (or
business relationship), or until the expiration of the stated
term of the Option, if earlier.
(B) Except as otherwise provided by the
Administrator at any time, the death of an optionee during a
period provided in this Section 5(a)(viii) for the exercise of
a Stock Option shall extend such period for 12 months from the
date of death, subject to termination on the expiration of the
stated term of the Option, if earlier.
(ix) TERMINATION FOR CAUSE. If any optionee's employment
by (or business relationship with) the Company and its Subsidiaries is
terminated for Cause, any Stock Option held by such optionee, including
any Stock Option that is immediately exercisable at the time of such
termination, shall immediately terminate and be of no further force and
effect; provided, however, that the Administrator may, in its sole
discretion, provide that such Stock Option can be exercised for a
period of up to 30 days from the date of termination of employment (or
business relationship) or until the expiration of the stated term of
the Option, if earlier.
(x) OTHER TERMINATION. Unless otherwise determined by the
Administrator, if an optionee's employment by (or business relationship
with) the Company and its Subsidiaries terminates for any reason other
than death, Disability, Retirement, or for Cause, any Stock Option held
by such optionee may thereafter be exercised, to the extent it was
exercisable on the date of termination of employment (or business
relationship), for three months (or such longer period as the
Administrator shall specify at any time) from the date of termination
of employment (or business relationship) or until the expiration of the
stated term of the Option, if earlier.
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(xi) ANNUAL LIMIT ON INCENTIVE STOCK OPTIONS. To the
extent required for "incentive stock option" treatment under Section
422 of the Code, the aggregate Fair Market Value (determined as of the
time of grant) of the shares of Stock with respect to which Incentive
Stock Options granted under this Plan and any other plan of the Company
or its parent and subsidiary corporations become exercisable for the
first time by an optionee during any calendar year shall not exceed
$100,000. To the extent that any Stock Option exceeds this limit, it
shall constitute a Non-Qualified Stock Option.
(b) RELOAD OPTIONS. At the discretion of the Administrator,
Options granted under Section 5(a) may include a "reload" feature pursuant to
which an optionee exercising an option by the delivery of a number of shares of
Stock in accordance with Section 5(a)(v)(B) hereof would automatically be
granted an additional Option (with an exercise price equal to the Fair Market
Value of the Stock on the date the additional Option is granted and with the
same expiration date as the original Option being exercised, and with such other
terms as the Administrator may provide) to purchase that number of shares of
Stock equal to the number delivered to exercise the original Option.
(c) Certain Stock Options Granted to Independent Directors.
-------------------------------------------------------
(i) Automatic Grant of Options.
---------------------------
(A) Each Independent Director who is serving as
a Director on the effective date of the Company's registration
statement under the Securities Act of 1933, as amended,
relating to its initial public offering (the "IPO Date") shall
be granted on such date, a Non-Qualified Stock Option to
acquire 12,000 shares of Stock.
(B) Each Independent Director who is first
elected to serve as a Director after the IPO Date but before
November 4, 1996 shall be granted on the date of his or her
election a Non-Qualified Stock Option to acquire 12,000 shares
of Stock.
(C) The exercise price per share for the Stock
covered by a Stock Option granted under this Section 5(c)
shall be equal to the Fair Market Value of the Stock on the
date the Stock Option is granted.
(ii) Exercise; Termination.
----------------------
(A) Except as provided in Section 15, an Option
granted under this Section 5(c) shall vest and become
exercisable ratably over a four-year period, so that it shall
vest with respect to 25% of the shares of Stock issuable
thereunder on the first anniversary of the date of grant, and
with respect to an additional 25% on each of the three
anniversaries thereafter; provided, however, that any Option
so granted shall become exercisable upon the
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termination of service of the Independent Director because of
Disability or death. An Option issued under this Section 5(c)
shall not be exercisable after the expiration of ten years
from the date of grant.
(B) If an Independent Director ceases to be a
Director for any reason other than Cause or death, an Option
granted under this Section 5(c) may thereafter be exercised,
to the extent it was exercisable on the date such optionee
ceases to be a Director, for a period of six months from such
date or until the expiration of the stated term of the Option,
if earlier; provided that any such Director shall have served
as such for at least six months. If the optionee ceases to be
a Director for Cause, all rights in an Option granted under
this Section 5(c) shall terminate immediately on the date he
ceases to be a Director.
(C) Notwithstanding paragraph (B) above, any
Option granted to an Independent Director under this Section
5(c) and outstanding on the date of his death may be exercised
by the legal representative or legatee of the optionee for a
period of twelve months from the date of death or until the
expiration of the stated term of the option, if earlier.
(D) Options granted under this Section 5(c) may
be exercised only by written notice to the Company specifying
the number of shares to be purchased. Payment of the full
purchase price of the shares to be purchased may be made by
one or more of the methods specified in Section 5(a)(v). An
optionee shall have the rights of a stockholder only as to
shares acquired upon the exercise of a Stock Option and not as
to unexercised Stock Options.
(d) NON-TRANSFERABILITY OF OPTIONS. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee. Notwithstanding the foregoing, the
Administrator may provide in an option agreement evidencing a Non-Qualified
Stock Option that the optionee may transfer, without consideration for the
transfer, such Non-Qualified Stock Option to members of his immediate family, to
trusts for the benefit of such family members, to partnerships in which such
family members are the only partners, or to charitable organizations, provided
that the transferee agrees in writing with the Company to be bound by all of the
terms and conditions of the Plan and the applicable option agreement.
(e) FORM OF SETTLEMENT. Shares of Stock issued upon exercise of a
Stock Option shall be free of all restrictions under the Plan, except as
otherwise provided in the Plan.
SECTION 6. STOCK APPRECIATION RIGHTS.
-------------------------
(a) NATURE OF STOCK APPRECIATION RIGHTS. A Stock Appreciation
Right is an Award entitling the recipient to receive an amount in cash or shares
of Stock or a combination thereof
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having a value equal to the excess of the Fair Market Value of the Stock on the
date of exercise over the exercise price per Stock Appreciation Right set by the
Administrator at the time of grant, which price shall not be less than 85% of
the Fair Market Value of the Stock on the date of grant (or over the option
exercise price per share, if the Stock Appreciation Right was granted in tandem
with a Stock Option) multiplied by the number of shares of Stock with respect to
which the Stock Appreciation Right shall have been exercised, with the
Administrator having the right to determine the form of payment.
(b) GRANT AND EXERCISE OF STOCK APPRECIATION RIGHTS. Stock
Appreciation Rights may be granted by the Administrator in tandem with, or
independently of, any Stock Option granted pursuant to Section 5 of the Plan. In
the case of a Stock Appreciation Right granted in tandem with a Non-Qualified
Stock Option, such Stock Appreciation Right may be granted either at or after
the time of the grant of such Option. In the case of a Stock Appreciation Right
granted in tandem with an Incentive Stock Option, such Stock Appreciation Right
may be granted only at the time of the grant of the Option.
A Stock Appreciation Right or applicable portion thereof granted in
tandem with a Stock Option shall terminate and no longer be exercisable upon the
termination or exercise of the related Option.
(c) TERMS AND CONDITIONS OF STOCK APPRECIATION RIGHTS. Stock
Appreciation Rights shall be subject to such terms and conditions as shall be
determined from time to time by the Administrator, subject to the following:
(i) Stock Appreciation Rights granted in tandem with
Options shall be exercisable at such time or times and to the extent
that the related Stock Options shall be exercisable.
(ii) Upon exercise of a Stock Appreciation Right, the
applicable portion of any related Option shall be surrendered.
(iii) Stock Appreciation Rights granted in tandem with an
Option shall be transferable only when and to the extent that the
underlying Option would be transferable. Stock Appreciation Rights not
granted in tandem with an Option shall not be transferable otherwise
than by will or the laws of descent or distribution. All Stock
Appreciation Rights shall be exercisable during the participant's
lifetime only by the participant or the participant's legal
representative.
SECTION 7. RESTRICTED STOCK AWARDS
-----------------------
(a) NATURE OF RESTRICTED STOCK AWARDS. A Restricted Stock Award
is an Award entitling the recipient to acquire, at par value or such other
purchase price determined by the Administrator, shares of Stock subject to such
restrictions and conditions as the Administrator may determine at the time of
grant ("Restricted Stock"). Conditions may be based on
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<PAGE> 13
continuing employment (or other business relationship) and/or achievement of
pre-established performance goals and objectives.
(b) RIGHTS AS A STOCKHOLDER. Upon execution of a written
instrument setting forth the Restricted Stock Award and paying any applicable
purchase price, a participant shall have the rights of a stockholder with
respect to the voting of the Restricted Stock, subject to such conditions
contained in the written instrument evidencing the Restricted Stock Award.
Unless the Administrator shall otherwise determine, certificates evidencing the
Restricted Stock shall remain in the possession of the Company until such
Restricted Stock is vested as provided in Section 7(d) below.
(c) RESTRICTIONS. Restricted Stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of except as
specifically provided herein or in the written instrument evidencing the
Restricted Stock Award. If a participant's employment (or other business
relationship) with the Company and its Subsidiaries terminates for any reason,
the Company shall have the right to repurchase Restricted Stock with respect to
which conditions have not lapsed at their purchase price from the participant or
the participant's legal representative.
(d) VESTING OF RESTRICTED STOCK. The Administrator at the time of
grant shall specify the date or dates and/or the attainment of pre-established
performance goals, objectives and other conditions on which the
non-transferability of the Restricted Stock and the Company's right of
repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or
the attainment of such pre-established performance goals, objectives and other
conditions, the shares on which all restrictions have lapsed shall no longer be
Restricted Stock and shall be deemed "vested." Except as may otherwise be
provided by the Administrator at any time, a participant's rights in any shares
of Restricted Stock that have not vested shall automatically terminate upon the
participant's termination of employment (or other business relationship) with
the Company and its Subsidiaries and such shares shall be subject to the
Company's right of repurchase as provided in Section 7(c) above.
(e) WAIVER, DEFERRAL AND REINVESTMENT OF DIVIDENDS. The written
instrument evidencing the Restricted Stock Award may require or permit the
immediate payment, waiver, deferral or investment of dividends paid on the
Restricted Stock.
SECTION 8. UNRESTRICTED STOCK AWARDS
-------------------------
(a) GRANT OR SALE OF UNRESTRICTED STOCK. The Administrator may, in
its sole discretion, grant (or sell at a purchase price determined by the
Administrator) an Unrestricted Stock Award to any participant, pursuant to which
such participant may receive shares of Stock free of any restrictions
("Unrestricted Stock") under the Plan. Unrestricted Stock Awards may be granted
or sold as described in the preceding sentence in respect of past services or
other valid consideration, or in lieu of any cash compensation due to such
participant.
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(b) ELECTIONS TO RECEIVE UNRESTRICTED STOCK IN LIEU OF
COMPENSATION. Upon the request of a participant and with the consent of the
Administrator, each participant may, pursuant to an advance written election
delivered to the Company no later than the date specified by the Administrator,
receive a portion of the cash compensation otherwise due to such participant in
the form of shares of Unrestricted Stock (valued at Fair Market Value on the
date or dates the cash compensation would otherwise be paid) either currently or
on a deferred basis.
(c) RESTRICTIONS ON TRANSFERS. The right to receive shares of
Unrestricted Stock on a deferred basis may not be sold, assigned, transferred,
pledged or otherwise encumbered, other than by will or the laws of descent and
distribution.
SECTION 9. PERFORMANCE SHARE AWARDS
------------------------
(a) NATURE OF PERFORMANCE SHARE AWARDS. A Performance Share Award
is an Award entitling the recipient to acquire shares of Stock upon the
attainment of specified performance goals. The Administrator may make
Performance Share Awards independent of or in connection with the granting of
any other Award under the Plan. The Administrator in its sole discretion shall
determine whether and to whom Performance Share Awards shall be made, the
performance goals applicable under each such Award, the periods during which
performance is to be measured, and all other limitations and conditions
applicable to the awarded Performance Shares; provided, however, that the
Administrator may rely on the performance goals and other standards applicable
to other performance unit plans of the Company in setting the standards for
Performance Share Awards under the Plan.
(b) RESTRICTIONS ON TRANSFER. Performance Share Awards and all
rights with respect to such Awards may not be sold, assigned, transferred,
pledged or otherwise encumbered.
(c) RIGHTS AS A SHAREHOLDER. A participant receiving a Performance
Share Award shall have the rights of a shareholder only as to shares actually
received by the participant under the Plan and not with respect to shares
subject to the Award but not actually received by the participant. A participant
shall be entitled to receive a stock certificate evidencing the acquisition of
shares of Stock under a Performance Share Award only upon satisfaction of all
conditions specified in the written instrument evidencing the Performance Share
Award (or in a performance plan adopted by the Administrator).
(d) TERMINATION. Except as may otherwise be provided by the
Administrator at any time prior to termination of employment (or other business
relationship), a participant's rights in all Performance Share Awards shall
automatically terminate upon the participant's termination of employment (or
business relationship) with the Company and its Subsidiaries for any reason.
(e) ACCELERATION, WAIVER, ETC. At any time prior to the
participant's termination of employment (or other business relationship) by the
Company and its Subsidiaries, the
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Administrator may in its sole discretion accelerate, waive or, subject to
Section 13, amend any or all of the goals, restrictions or conditions imposed
under any Performance Share Award.
SECTION 10. DIVIDEND EQUIVALENT RIGHTS
--------------------------
(a) DIVIDEND EQUIVALENT RIGHTS. A Dividend Equivalent Right is an
Award entitling the recipient to receive credits based on cash dividends that
would be paid on the shares of Stock specified in the Dividend Equivalent Right
(or other award to which it relates) if such shares were held by the recipient.
A Dividend Equivalent Right may be granted hereunder to any participant, as a
component of another Award or as a freestanding award. The terms and conditions
of Dividend Equivalent Rights shall be specified in the grant. Dividend
equivalents credited to the holder of a Dividend Equivalent Right may be paid
currently or may be deemed to be reinvested in additional shares of Stock, which
may thereafter accrue additional equivalents. Any such reinvestment shall be at
Fair Market Value on the date of reinvestment or such other price as may then
apply under a dividend reinvestment plan sponsored by the Company, if any.
Dividend Equivalent Rights may be settled in cash or shares of Stock or a
combination thereof, in a single installment or installments. A Dividend
Equivalent Right granted as a component of another Award may provide that such
Dividend Equivalent Right shall be settled upon exercise, settlement, or payment
of, or lapse of restrictions on, such other award, and that such Dividend
Equivalent Right shall expire or be forfeited or annulled under the same
conditions as such other award. A Dividend Equivalent Right granted as a
component of another Award may also contain terms and conditions different from
such other award.
(b) INTEREST EQUIVALENTS. Any Award under this Plan that is
settled in whole or in part in cash on a deferred basis may provide in the grant
for interest equivalents to be credited with respect to such cash payment.
Interest equivalents may be compounded and shall be paid upon such terms and
conditions as may be specified by the grant.
SECTION 11. TAX WITHHOLDING
---------------
(a) PAYMENT BY PARTICIPANT. Each participant shall, no later than
the date as of which the value of an Award or of any Stock or other amounts
received thereunder first becomes includable in the gross income of the
participant for Federal income tax purposes, pay to the Company, or make
arrangements satisfactory to the Administrator regarding payment of, any
Federal, state, or local taxes of any kind required by law to be withheld with
respect to such income. The Company and its Subsidiaries shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment of
any kind otherwise due to the participant.
(b) PAYMENT IN STOCK. Subject to approval by the Administrator, a
participant may elect to have such tax withholding obligation satisfied, in
whole or in part, by (i) authorizing the Company to withhold from shares of
Stock to be issued pursuant to any Award a number of shares with an aggregate
Fair Market Value (as of the date the withholding is effected) that
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<PAGE> 16
would satisfy the withholding amount due, or (ii) transferring to the Company
shares of Stock owned by the participant with an aggregate Fair Market Value (as
of the date the withholding is effected) that would satisfy the withholding
amount due.
SECTION 12. TRANSFER, LEAVE OF ABSENCE, ETC
-------------------------------
For purposes of the Plan, the following events shall not be deemed a
termination of employment:
(a) a transfer to the employment of the Company from a Subsidiary
or from the Company to a Subsidiary, or from one Subsidiary to another; or
(b) an approved leave of absence for military service or sickness,
or for any other purpose approved by the Company, if the employee's right to
re-employment is guaranteed either by a statute or by contract or under the
policy pursuant to which the leave of absence was granted or if the
Administrator otherwise so provides in writing.
SECTION 13. AMENDMENTS AND TERMINATION
--------------------------
The Board may, at any time, amend or discontinue the Plan and the
Administrator may, at any time, amend or cancel any outstanding Award (or
provide substitute Awards at the same or reduced exercise or purchase price or
with no exercise or purchase price in a manner not inconsistent with the terms
of the Plan), but such price, if any, must satisfy the requirements which would
apply to the substitute or amended Award if it were then initially granted under
this Plan) for the purpose of satisfying changes in law or for any other lawful
purpose, but no such action shall adversely affect rights under any outstanding
Award without the holder's consent. If and to the extent determined by the
Administrator to be required to ensure that Incentive Stock Options granted
under the Plan are qualified under Section 422 of the Code, Plan amendments
shall be subject to approval by the Company stockholders entitled to vote at a
meeting of stockholders.
SECTION 14. STATUS OF PLAN
--------------
With respect to the portion of any Award which has not been exercised
and any payments in cash, Stock or other consideration not received by a
participant, a participant shall have no rights greater than those of a general
creditor of the Company unless the Administrator shall otherwise expressly
determine in connection with any Award or Awards. In its sole discretion, the
Administrator may authorize the creation of trusts or other arrangements to meet
the Company's obligations to deliver Stock or make payments with respect to
Awards hereunder, provided that the existence of such trusts or other
arrangements is consistent with the foregoing sentence.
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SECTION 15. CHANGE OF CONTROL PROVISIONS
----------------------------
Upon the occurrence of a Change of Control as defined in this Section
15:
(a) Each outstanding Stock Option and Stock Appreciation Right
shall automatically become fully exercisable notwithstanding any provision to
the contrary herein.
(b) Each Restricted Stock Award and Performance Share Award shall
be subject to such terms, if any, with respect to a Change of Control as have
been provided by the Administrator in connection with such Award.
(c) "Change of Control" shall mean the occurrence of any one of
the following events:
(i) any "person," as such term is used in Sections 13(d)
and 14(d) of the Act (other than the Company, any of its Subsidiaries,
or any trustee, fiduciary or other person or entity holding securities
under any employee benefit plan or trust of the Company or any of its
Subsidiaries), together with all "affiliates" and "associates" (as such
terms are defined in Rule 12b-2 under the Act) of such person, shall
become the "beneficial owner" (as such term is defined in Rule 13d-3
under the Act), directly or indirectly, of securities of the Company
representing in excess of 50% of either (A) the combined voting power
of the Company's then outstanding securities having the right to vote
in an election of the Company's Board of Directors ("Voting
Securities") or (B) the then outstanding shares of Stock of the Company
(in either such case other than as a result of an acquisition of
securities directly from the Company); or
(ii) persons who, as of the Effective Date, constitute the
Company's Board of Directors (the "Incumbent Directors") cease for any
reason, including, without limitation, as a result of a tender offer,
proxy contest, merger or similar transaction, to constitute at least a
majority of the Board, provided that any person becoming a director of
the Company subsequent to the Effective Date whose election or
nomination for election was approved by a vote of at least a majority
of the Incumbent Directors shall, for purposes of this Plan, be
considered an Incumbent Director; or
(iii) the stockholders of the Company shall approve (A) any
consolidation or merger of the Company or any Subsidiary where the
shareholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the Act),
directly or indirectly, shares representing in the aggregate 80% or
more of the voting shares of the corporation issuing cash or securities
in the consolidation or merger (or of its ultimate parent corporation,
if any), (B) any sale, lease, exchange or other transfer (in one
transaction or a series of transactions contemplated or arranged by any
party as a single plan) of all or substantially all of the assets of
the Company or (C) any plan or proposal for the liquidation or
dissolution of the Company.
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Notwithstanding the foregoing, a "Change of Control" shall not be
deemed to have occurred for purposes of the foregoing clause (i) solely as the
result of an acquisition of securities by the Company which, by reducing the
number of shares of Stock or other Voting Securities outstanding, increases (x)
the proportionate number of shares of Stock beneficially owned by any person in
excess of 50% or more of the shares of Stock then outstanding or (y) the
proportionate voting power represented by the Voting Securities beneficially
owned by any person in excess of 50% or more of the combined voting power of all
then outstanding Voting Securities; PROVIDED, HOWEVER, that if any person
referred to in clause (x) or (y) of this sentence shall thereafter become the
beneficial owner of any additional shares of Stock or other Voting Securities
(other than pursuant to a stock split, stock dividend, or similar transaction),
then a "Change of Control" shall be deemed to have occurred for purposes of the
foregoing clause (i).
SECTION 16. GENERAL PROVISIONS
------------------
(a) NO DISTRIBUTION; COMPLIANCE WITH LEGAL REQUIREMENTS. The
Administrator may require each person acquiring Stock pursuant to an Award to
represent to and agree with the Company in writing that such person is acquiring
the shares without a view to distribution thereof.
No shares of Stock shall be issued pursuant to an Award until all
applicable securities law and other legal and stock exchange or similar
requirements have been satisfied. The Administrator may require the placing of
such stop-orders and restrictive legends on certificates for Stock and Awards as
it deems appropriate.
(b) DELIVERY OF STOCK CERTIFICATES. Delivery of stock certificates
to participants under this Plan shall be deemed effected for all purposes when
the Company or a stock transfer agent of the Company shall have mailed such
certificates in the United States mail, addressed to the participant, at the
participant's last known address on file with the Company.
(c) OTHER COMPENSATION ARRANGEMENTS; NO EMPLOYMENT RIGHTS. Nothing
contained in this Plan shall prevent the Board from adopting other or additional
compensation arrangements, including trusts, and such arrangements may be either
generally applicable or applicable only in specific cases. The adoption of this
Plan and the grant of Awards do not confer upon any employee any right to
continued employment with the Company or any Subsidiary.
SECTION 17. EFFECTIVE DATE OF PLAN
----------------------
This Plan shall become effective upon approval by the holders of a
majority of the shares of Stock of the Company present or represented and
entitled to vote at a meeting of stockholders. Subject to such approval by the
stockholders and to the requirement that no Stock may be issued hereunder prior
to such approval, Stock Options and other Awards may be granted hereunder on and
after adoption of this Plan by the Board.
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SECTION 18. GOVERNING LAW
-------------
This Plan shall be governed by Delaware law except to the extent such
law is preempted by federal law.
DATE APPROVED BY BOARD OF DIRECTORS: June 14, 1996
DATE APPROVED BY STOCKHOLDERS: June 26, 1996
DATE AMENDED AND RESTATED BY BOARD OF DIRECTORS: November 4, 1996
19
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GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 227-8890
Exhibit 5.1
-----------
November 4, 1996
Selfcare, Inc.
200 Prospect Street
Waltham, MA 02154
Re: Registration Statement on Form S-8
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Gentlemen:
This opinion is furnished in connection with the registration, pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), of 4,382,444
shares of common stock, par value $.001 per share (the "Shares"), of Selfcare,
Inc., a Delaware corporation (the "Company").
In connection with rendering this opinion, we have examined the Amended
and Restated Certificate of Incorporation and the Amended and Restated Bylaws of
the Company; such records of the corporate proceedings of the Company as we
deemed material; a registration statement on Form S-8 under the Securities Act
relating to the Shares (the "Registration Statement") and the prospectus
contained therein (the "Prospectus"); the Selfcare, Inc. Amended and Restated
1996 Stock Option and Grant Plan; the Selfcare, Inc. 1994 Incentive and
Non-Qualified Stock option Plan; the Selfcare, Inc. 1992 Stock Plan; and such
other certificates, receipts, records and documents as we considered necessary
for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion herein concerning the laws of any
jurisdictions other than the laws of the United States of America, the
Commonwealth of Massachusetts and the General Corporation Law of the State of
Delaware.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Prospectus,
the Shares will be legally issued, fully paid and nonassessable shares of common
stock, par value $.001 per share, of the Company.
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Selfcare, Inc.
November 4, 1996
Page 2
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Securities Act and applicable requirements of state
laws regulating the offer and sale of securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated March 1, 1996
(except for the matters discussed in Note 2(l), 5, 8, 9(c), 9(d), 11(a) and
11(d) as to which the dates are June 20, 1996, May 7, 1996, May 21, 1996, July
5, 1996, March 15, 1996, May 11, 1996 and June 13, 1996, respectively)
included in Selfcare, Inc. Form SB-2 for the year ended December 31, 1995 and
to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts,
October 31, 1996
