<PAGE>
As filed with the Securities and Exchange Commission on January 27, 2000
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 02453
(781) 647-3900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
STOCK OPTION GRANTS TO KEITH MAY, JEROME MCALEER AND DAVID SCOTT
(Full Title of the Plan)
------------------------------------
RON ZWANZIGER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
SELFCARE, INC.
200 PROSPECT STREET
WALTHAM, MASSACHUSETTS 02453
(781) 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
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Securities Being Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
Registered Registered Price Per Share Offering Price Registration Fee
<S> <C> <C> <C> <C> <C>
Common Stock, par value $.001 660,000 shares $4.94(1) $3,260,400 $861
per share
</TABLE>
(1) 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
January 26, 2000 pursuant to Rules 457(c) and (h) under the Securities
Act of 1933, as amended, solely for purposes of determining the
registration fee.
<PAGE>
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 Annual Report on Form 10-K/A for the fiscal year ended
December 31, 1998;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1999;
(d) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended September 30, 1999;
(e) The Company's Current Report on Form 8-K filed with the
Securities and Exchange Commission on May 28, 1999; and
(f) 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
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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 53,642 shares of Common Stock. The president of
another professional corporation which is a partner in Goodwin, Procter & Hoar
LLP beneficially owns 4,000 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Section 145 of the General Corporation Law of the
State of Delaware, Article VII of the Company's Amended and Restated Certificate
of Incorporation, as amended (the "Certificate of Incorporation"), provides that
no director of the Company shall be personally liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
Company or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) in
respect of certain unlawful dividend payments or stock redemptions or
repurchases, or (iv) for any transaction from which the director derived an
improper personal benefit. In addition, the Certificate of Incorporation
provides that if the Delaware General Corporation Law is amended to authorize
the further elimination or limitation of the liability of
<PAGE>
directors, then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Article V of the Company's Amended and Restated By-laws (the "By-laws")
provides for indemnification by the Company of its directors, officers and
certain non-officer employees under certain circumstances against expenses
(including judgments, fines and amounts reasonably paid in settlement) incurred
in connection with the defense or settlement of any threatened, pending or
completed legal proceeding in which any such person is involved by reason of the
fact that such person is or was an officer or employee of the Company, if such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of the Company, and, with respect to
criminal proceedings, if such person had no reasonable cause to believe his or
her conduct was unlawful.
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.
<TABLE>
<CAPTION>
EXHIBITS
<S> <C>
4.1 Amended and Restated Certificate of Incorporation.*
4.2 Amended and Restated By-laws.*
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 (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
24.1 Powers of Attorney (included on signature page hereto).
99.1 Form of Option Agreement.
99.2 Form of Option Agreement.
99.3 Form of Option Agreement.
</TABLE>
* Incorporated by reference to the Company's registration statement on
Form SB-2, No. 333-4830-NY.
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 of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and of
the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
2
<PAGE>
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished
to the Securities and Exchange Commission by Selfcare,
Inc. pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in
this registration statement;
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof; 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 of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
BONA FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, 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 of 1933, 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 of 1933 and will be governed by
the final adjudication of such issue.
3
<PAGE>
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
January 27, 2000.
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 and
Jeffrey A. Templer, 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.
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.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
<S> <C> <C>
/s/ Ron Zwanziger Director, President and January 27, 2000
- ------------------------------------
Ron Zwanziger Chief Executive Officer
(Principal Executive Officer)
/s/ Jeffrey A. Templer Chief Financial Officer (Principal Financial January 27, 2000
- ------------------------------------
Jeffrey A. Templer Officer)
/s/ Jonathan J. Fleming Director January 27, 2000
- ------------------------------------
Jonathan J. Fleming
/s/ Carol R. Goldberg Director January 27, 2000
- ------------------------------------
Carol R. Goldberg
/s/ John F. Levy Director January 27, 2000
- ------------------------------------
John F. Levy
/s/ Robert Oringer Director January 27, 2000
- ------------------------------------
Robert Oringer
/s/ Edward B. Roberts Director January 27, 2000
- ------------------------------------
Edward B. Roberts
/s/ Peter Townsend Director January 27, 2000
- ------------------------------------
Peter Townsend
/s/ Willard Lee Umphrey Director January 27, 2000
- ------------------------------------
Willard Lee Umphrey
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation.*
4.2 Amended and Restated By-laws.*
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 (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
24.1 Powers of Attorney (included on signature page hereto).
99.1 Form of Option Agreement.
99.2 Form of Option Agreement.
99.3 Form of Option Agreement.
</TABLE>
* Incorporated by reference to the Company's registration statement on
Form SB-2, No. 333-4830-NY.
<PAGE>
EXHIBIT 5.1
January 27, 2000
Selfcare, Inc.
200 Prospect Street
Waltham, MA 02453
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Selfcare,
Inc., a Delaware corporation (the "Company"), in connection with the preparation
and filing with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Securities Act"), of a Registration Statement on Form
S-8 (the "Registration Statement") relating to 660,000 shares (the "Shares") of
the Company's common stock, par value $.001 per share ("Common Stock"), which
the Company may issue pursuant to certain Non-Qualified Stock Option Agreements,
dated as of October 13, 1998, August 16, 1999 and September 14, 1999 (the
"Option Agreements").
As counsel for the Company, we have examined copies of the Option
Agreements; the Company's Certificate of Incorporation and By-laws, each as
amended to date and presently in effect; the Registration Statement; and such
records, certificates and other documents of the Company as we have deemed
necessary or appropriate for the purposes of this opinion. In our examination,
we have assumed the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as certified,
photostatic or facsimile copies, the authenticity of the originals of such
copies and the authenticity of telephonic confirmations of public officials and
others. As to facts material to our opinion, we have relied upon certificates or
telephonic confirmations of public officials and certificates, documents,
statements and other information of the Company or representatives or officers
thereof.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and The Commonwealth of
Massachusetts and the Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that upon the issuance
and delivery of the Shares against payment therefor in accordance with the terms
of the Option Agreements, the Shares will be validly issued, fully paid and
non-assessable shares of the Company's Common Stock.
<PAGE>
The foregoing assumes 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 inclusion of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
ARTHUR ANDERSEN LLP
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 4, 1999
incorporated by reference in Selfcare, Inc.'s Form 10-K/A for the year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
January 21, 2000
<PAGE>
EXHIBIT 99.1
OPTION AGREEMENT
SELFCARE, INC.
STOCK OPTION AND GRANT PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
For Employees and Key Persons
SHARES AWARDED , 199_
- ---------------------------------------------------
Selfcare, Inc. (the "Company") hereby grants to ______________ (the
"Optionee") an option (the "Option") to purchase on or prior to__________ __,
____ (the "Expiration Date") all or any part of shares of Common Stock of the
Company, par value $.001 per share ("Option Shares") at a price of $____ per
share in accordance with the schedule set forth hereinafter. This Option does
not qualify as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), and consequently shall be treated
as a non-qualified stock option for tax purposes. This Option shall be governed
by the laws of Delaware. This Option is not granted pursuant to any plan;
however, it is the intent of the Company that Optionee should have the same
rights and privileges as if this Option had been granted under the Company's
1996 Stock Option and Grant Plan (the "Plan"), a copy of which is attached
hereto and thus, certain provisions of the Plan, as amended from time to time,
have been incorporated herein by specific reference. To the extent incorporated
herein, capitalized terms used herein but not defined herein shall have the
meanings ascribed thereto in the Plan. Unless specifically incorporated herein
by express reference, the terms of the Plan shall not apply to this Option
Grant.
1. VESTING SCHEDULE. Subject to the provisions of Section 4 hereof,
this Option shall become vested and exercisable with respect to the following
whole number of Option Shares according to the timetable set forth below:
<TABLE>
<CAPTION>
Percentage of Cumulative
Number of Years Shares Becoming Percentage
AFTER DATE OF GRANT AVAILABLE FOR EXERCISE AVAILABLE
<S> <C> <C>
Less than 1 year 0% 0%
At least 1 year 25% 25%
At least 2 years 25% 50%
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
At least 3 years 25% 75%
At least 4 years 25% 100%
</TABLE>
2. MANNER OF EXERCISE. The Optionee may exercise this Option only in
the following manner: from time to time on or prior to the Expiration Date of
this Option, the Optionee may give written notice to the Company's Option
Committee (the "Committee", being the same Committee referred to in Section 2(a)
of the Plan, which is expressly incorporated herein) of his election to purchase
some or all of the vested Option Shares purchasable at the time of such notice.
Such notice shall specify the number of shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one
or more of the following methods:
(a) in cash, by certified or bank check or other instrument
acceptable to the Committee;
(b) in the form of shares of Common Stock, par value $.001 per share,
of the Company (the "Common Stock") that are not then subject to
restrictions under any Company plan and that have been held by the
Optionee for at least six (6) months, if permitted by the Committee in
its discretion. Such surrendered shares shall be valued at Fair Market
Value (as defined in the Plan) 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 option purchase price; provided that in the
event the Optionee chooses to pay the option 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
Committee shall prescribe as a condition of such payment procedure.
Payment instruments will be received subject to collection. The
delivery of certificates representing the Option Shares will be contingent upon
the Company's receipt from the Optionee (or a purchaser acting in his stead in
accordance with this Option) by the Company of the full payment for the Option
Shares, as set forth above, and any agreement, statement or other evidence that
the Company may require to satisfy itself that the issuance of Option Shares to
be purchased pursuant to the exercise of this Option and any subsequent resale
of the Option Shares will be in compliance with applicable laws and regulations.
If requested upon the exercise of this Option, certificates for shares
may be issued in the name of the Optionee jointly with another person or in the
name of the executor or administrator of the Optionee's estate.
<PAGE>
Notwithstanding any other provision hereof or of the Plan or any
amendment thereto, no portion of this Option shall be exercisable after the
Expiration Date hereof.
3. NON-TRANSFERABILITY OF OPTION. This Option shall not be transferable
by the Optionee otherwise than by will or by the laws of descent and
distribution and this Option shall be exercisable, during the Optionee's
lifetime, only by the Optionee.
4. TERMINATION OF EMPLOYMENT. If the Optionee's employment by (or other
business relationship with) the Company and its Subsidiaries is terminated, the
extent to which and the period within which the Option may be exercised shall be
as set forth below.
(a) TERMINATION BY REASON OF DEATH. If the Optionee's
employment by (or other business relationship with) the
Company and its Subsidiaries is terminated by reason of death,
any Option held by the Optionee shall become fully exercisable
and may thereafter be exercised by the Optionee's legal
representative or legatee for a period of 12 months (or such
longer period as the Committee shall specify at any time) from
the date of death or until the Expiration Date, if earlier.
(b) TERMINATION BY REASON OF DISABILITY. If the Optionee's
employment by (or other business relationship with) the
Company and its Subsidiaries is terminated by reason of
Disability, any Option held by the Optionee shall become fully
exercisable and may thereafter be exercised for a period of 12
months (or such longer period as the Committee shall specify
at any time) from the date of such termination of employment
(or other business relationship) or until the Expiration Date,
if earlier. Except as otherwise provided by the Committee at
any time, the death of the Optionee during the twelve (12)
month period provided in this Section 4(b) shall extend such
period for 12 months from the date of death or until the
Expiration Date, if earlier.
(c) TERMINATION BY REASON OF RETIREMENT. If the Optionee's
employment (or other business relationship with) by the
Company and its Subsidiaries is terminated by reason of
Retirement, any Option held by the Optionee may thereafter be
exercised to the extent it was exercisable and the time of
such termination, for a period of 12 months (or such other
period as the Committee shall specify at any time) from the
date of such termination of employment (or other business
relationship) or until the Expiration Date, if earlier.
(d) TERMINATION FOR CAUSE. If the Optionee's employment by (or
other business relationship with) the Company and its
Subsidiaries is terminated for Cause, any Option held by the
Optionee, including any 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 Committee may, in its sole discretion, provide that such
Option can be exercised for a period of up to 30 days
<PAGE>
from the date of such termination of employment (or other
business relationship) or until the Expiration Date, if
earlier.
(e) OTHER TERMINATION. Unless otherwise determined by the
Committee, if the Optionee's employment by (or other business
relationship with) the Company and its Subsidiaries is
terminated for any reason other than death, Disability,
Retirement or Cause, any Option held by the Optionee may
thereafter be exercised, to the extent exercisable on the date
of termination, for a period of three (3) months (or such
longer period as the Committee shall specify at any time) from
the date of such termination of employment (or other business
relationship) or until the Expiration Date, if earlier.
For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor an approved leave of
absence shall be deemed a "termination of employment."
5. OPTION SHARES. The Option Shares are shares of Common Stock as
constituted on the date of this Option award, subject to adjustment as provided
in Sections 3(b) and (c) of the Plan, which are expressly incorporated herein.
In applying Section 3(b) of the Plan, the Committee shall treat the Option
Shares hereunder as if they were part of the Plan and authorized under the Plan.
6. NO SPECIAL EMPLOYMENT RIGHTS. This Option will not confer upon the
Optionee any right with respect to continuance of employment by the Company or
its Subsidiaries, nor will it interfere in any way with any right of the
Optionee's employer to terminate the Optionee's employment at any time.
7. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any Common Stock that may be purchased by exercise
of this Option unless and until a certificate or certificates representing such
shares are duly issued and delivered to the Optionee. Except as expressly
provided in the Plan or any amendment thereto, which provisions, if any from
time to time shall be deemed expressly incorporated herein, no adjustment shall
be made for dividends or other rights for which the record date is prior to the
date such share certificate is issued.
8. TAX WITHHOLDING. No later than the date as of which part or all of
the value of any shares of Common Stock received hereunder first becomes
includable in the Optionee's gross income for Federal tax purposes, the Optionee
shall make arrangements with the Company in accordance with Section 11 of the
Plan, which is expressly incorporated herein, regarding the payment of any
federal, state or local taxes required to be withheld with respect to such
income.
9. THE PLAN. In addition to those provisions of the Plan heretofore
expressly incorporated into this Agreement, the provisions of Sections 12, 15
and 16 of the Plan shall also apply to this Agreement, MUTATIS MUTANDIS,and are
hereby deemed to be expressly incorporated
<PAGE>
herein. To the extent of any discrepancy of inconsistency between this Agreement
and the provisions of the Plan incorporated herein, the terms of this Agreement
shall control.
10. MISCELLANEOUS. Notices hereunder shall be mailed or delivered to
the Company at its principal place of business and shall be mailed or delivered
to Optionee at the address set forth below or, in either case, at such other
address as one party may subsequently furnish to the other party in writing.
SELFCARE, INC.
By
-----------------------
Name: RON ZWANZIGER
Title: PRESIDENT AND CEO
Receipt of the foregoing Option is acknowledged and its terms and
conditions are hereby agreed to:
, Optionee
----------------------------------
Address:
-------------------------
----------------------------------
----------------------------------
Date:
----------------------
<PAGE>
EXHIBIT 99.2
SELFCARE, INC.
STOCK OPTION AND GRANT PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
For Employees and Key Persons
SHARES AWARDED , 199_
- ----------------------------------------------
Selfcare, Inc. (the "Company") hereby grants to ___________ (the
"Optionee") an option (the "Option") to purchase on or prior to ________ __,
2009, or such earlier date as the Option Shares may expire under the terms
hereof (the "Expiration Date") all or any part of _______ shares of Common Stock
of the Company, par value $.001 per share ("Option Shares") at a price of $____
per share in accordance with the schedule and vesting terms set forth
hereinafter. This Option does not qualify as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), and
consequently shall be treated as a non-qualified stock option for tax purposes.
This Option shall be governed by the laws of Delaware. This Option is not
granted pursuant to any plan; however, it is the intent of the Company that
Optionee should have the same rights and privileges as if this Option had been
granted under the Company's 1996 Stock Option and Grant Plan (the "Plan"), a
copy of which is attached hereto and thus, certain provisions of the Plan, as
amended from time to time, have been incorporated herein by specific reference.
To the extent incorporated herein, capitalized terms used herein but not defined
herein shall have the meanings ascribed thereto in the Plan. Unless specifically
incorporated herein by express reference, the terms of the Plan shall not apply
to this Option Grant.
1. VESTING SCHEDULE. Subject to the provisions of Section 4
hereof, this Option shall become vested and exercisable as follows:
All Options will fully vest seven (7) years from the date of the grant,
provided that Executive remains employed with the Corporation and
further provided that a portion or all of the Options (as specified
below) shall vest earlier than the seven year vesting period at the end
of any year in which the Corporation achieves (a) the Profit Goal or
(b) the Market Price Goal in any year, where the goals are defined as
follows:
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Goal achieved by end of: 2000 2001 2002 2003
Percentage of Options vesting early at end of 100% 75% 50% 25%
year if Profit Goal or Market Price Goal is
achieved in that year.
(a) Profit Goal - The Corporation reports the $ 0.01 $ 0.15 $ 0.35 $ 0.50
following annual per share profit for the
calendar year ending:
(b) Market Price Goal - The average trading $ 8.50 $ 10.50 $ 12.50 $ 14.50
price for a share of the Corporation's publicly
traded common stock during any 30 day period
equals or exceeds the following levels during
any of the following years (where all of the 30
day period is within the year in question):
</TABLE>
2. MANNER OF EXERCISE. The Optionee may exercise this Option only in
the following manner: from time to time on or prior to the Expiration Date of
this Option, the Optionee may give written notice to the Company's Option
Committee (the "Committee", being the same Committee referred to in Section 2(a)
of the Plan, which is expressly incorporated herein) of his election to purchase
some or all of the vested Option Shares purchasable at the time of such notice.
Such notice shall specify the number of shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one
or more of the following methods:
(a) in cash, by certified or bank check or other instrument
acceptable to the Committee;
(b) in the form of shares of Common Stock, par value $.001 per share,
of the Company (the "Common Stock") that are not then subject to
restrictions under any Company plan and that have been held by the
Optionee for at least six (6) months, if permitted by the Committee in
its discretion. Such surrendered shares shall be valued at Fair Market
Value (as defined in the Plan) 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 option purchase price; provided that in the
event the Optionee chooses to pay the option 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
Committee shall prescribe as a condition of such payment procedure.
<PAGE>
Payment instruments will be received subject to collection. The
delivery of certificates representing the Option Shares will be contingent upon
the Company's receipt from the Optionee (or a purchaser acting in his stead in
accordance with this Option) by the Company of the full payment for the Option
Shares, as set forth above, and any agreement, statement or other evidence that
the Company may require to satisfy itself that the issuance of Option Shares to
be purchased pursuant to the exercise of this Option and any subsequent resale
of the Option Shares will be in compliance with applicable laws and regulations.
If requested upon the exercise of this Option, certificates for shares
may be issued in the name of the Optionee jointly with another person or in the
name of the executor or administrator of the Optionee's estate.
Notwithstanding any other provision hereof or of the Plan or any
amendment thereto, no portion of this Option shall be exercisable after the
Expiration Date hereof.
3. NON-TRANSFERABILITY OF OPTION. This Option shall not be transferable
by the Optionee otherwise than by will or by the laws of descent and
distribution and this Option shall be exercisable, during the Optionee's
lifetime, only by the Optionee, PROVIDED THAT the Optionee shall be permitted to
transfer the Option, without consideration for the transfer, to members of his
immediate family, to trusts for the benefit of such family members and to
partnerships in which such family members are the only partners, to the fullest
extent as would be permitted in Section 5(d) of the 1996 Stock Option and Grant
Plan if such Plan were applicable to the issuance of these Options.
4. TERMINATION OF EMPLOYMENT. If the Optionee's employment by (or other
business relationship with) the Company and its Subsidiaries is terminated, the
extent to which and the period within which the Option may be exercised shall be
as set forth below.
(a) TERMINATION BY REASON OF DEATH. If the Optionee's employment by (or
other business relationship with) the Company and its Subsidiaries is
terminated by reason of death, any Option held by the Optionee shall
become fully exercisable and may thereafter be exercised by the
Optionee's legal representative or legatee for a period of 12 months
(or such longer period as the Committee shall specify at any time) from
the date of death or until the Expiration Date, if earlier.
(b) TERMINATION BY REASON OF DISABILITY. If the Optionee's employment
by (or other business relationship with) the Company and its
Subsidiaries is terminated by reason of Disability, any Option held by
the Optionee shall become fully exercisable and may thereafter be
exercised for a period of 12 months (or such longer period as the
Committee shall specify at any time) from the date of such termination
of employment (or other business relationship) or until the Expiration
Date, if earlier. Except as otherwise provided by the Committee at any
time, the death of the Optionee during the twelve (12) month period
provided in this Section 4(b) shall extend such period for 12 months
from the date of death or until the Expiration Date, if earlier.
<PAGE>
(c) TERMINATION BY REASON OF RETIREMENT. If the Optionee's employment
(or other business relationship with) by the Company and its
Subsidiaries is terminated by reason of Retirement, any Option held by
the Optionee may thereafter be exercised to the extent it was
exercisable and the time of such termination, for a period of 12 months
(or such other period as the Committee shall specify at any time) from
the date of such termination of employment (or other business
relationship) or until the Expiration Date, if earlier.
(d) TERMINATION FOR CAUSE. If the Optionee's employment by (or other
business relationship with) the Company and its Subsidiaries is
terminated for Cause, any Option held by the Optionee, including any
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 Committee may, in its sole discretion,
provide that such Option can be exercised for a period of up to 30 days
from the date of such termination of employment (or other business
relationship) or until the Expiration Date, if earlier.
(e) OTHER TERMINATION. Unless otherwise determined by the Committee, if
the Optionee's employment by (or other business relationship with) the
Company and its Subsidiaries is terminated for any reason other than
death, Disability, Retirement or Cause, any Option held by the Optionee
may thereafter be exercised, to the extent exercisable on the date of
termination, for a period of three (3) months (or such longer period as
the Committee shall specify at any time) from the date of such
termination of employment (or other business relationship) or until the
Expiration Date, if earlier.
For this purpose, neither a transfer of employment from the Company to
a Subsidiary (or from a Subsidiary to the Company) nor an approved
leave of absence shall be deemed a "termination of employment."
5. OPTION SHARES. The Option Shares are shares of Common Stock as
constituted on the date of this Option award, subject to adjustment as provided
in Sections 3(b) and (c) of the Plan, which are expressly incorporated herein.
In applying Section 3(b) of the Plan, the Committee shall treat the Option
Shares hereunder as if they were part of the Plan and authorized under the Plan.
6. NO SPECIAL EMPLOYMENT RIGHTS. This Option will not confer upon the
Optionee any right with respect to continuance of employment by the Company or
its Subsidiaries, nor will it interfere in any way with any right of the
Optionee's employer to terminate the Optionee's employment at any time.
7. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any Common Stock that may be purchased by exercise
of this Option unless and until a certificate or certificates representing such
shares are duly issued and delivered to the Optionee. Except as expressly
provided in the Plan or any amendment thereto, which provisions, if any from
time to time shall be deemed expressly incorporated herein, no adjustment shall
be made
<PAGE>
for dividends or other rights for which the record date is prior to the date
such share certificate is issued.
8. TAX WITHHOLDING. No later than the date as of which part or all of
the value of any shares of Common Stock received hereunder first becomes
includable in the Optionee's gross income for Federal tax purposes, the Optionee
shall make arrangements with the Company in accordance with Section 11 of the
Plan, which is expressly incorporated herein, regarding the payment of any
federal, state or local taxes required to be withheld with respect to such
income.
9. THE PLAN. In addition to those provisions of the Plan heretofore
expressly incorporated into this Agreement, the provisions of Sections 12, 15
and 16 of the Plan shall also apply to this Agreement, MUTATIS MUTANDIS,and are
hereby deemed to be expressly incorporated herein. To the extent of any
discrepancy of inconsistency between this Agreement and the provisions of the
Plan incorporated herein, the terms of this Agreement shall control.
10. MISCELLANEOUS. Notices hereunder shall be mailed or delivered to
the Company at its principal place of business and shall be mailed or delivered
to Optionee at the address set forth below or, in either case, at such other
address as one party may subsequently furnish to the other party in writing.
SELFCARE, INC.
By
------------------------
Name: RON ZWANZIGER
Title: PRESIDENT AND CEO
Receipt of the foregoing Option is acknowledged and its terms and
conditions are hereby agreed to:
, Optionee
------------------------
Address:
--------------------------
----------------------------------
----------------------------------
<PAGE>
Date:
----------------------------
<PAGE>
EXHIBIT 99.3
OPTION AGREEMENT
SELFCARE, INC.
STOCK OPTION AND GRANT PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
For Employees and Key Persons
_________ SHARES AWARDED ________________, 199_
Selfcare, Inc. (the "Company") hereby grants to ______________ (the
"Optionee") an option (the "Option") to purchase on or prior to__________ __,
____ (the "Expiration Date") all or any part of shares of Common Stock of the
Company, par value $.001 per share ("Option Shares") at a price of $____ per
share in accordance with the schedule set forth hereinafter. This Option does
not qualify as an incentive stock option under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), and consequently shall be treated
as a non-qualified stock option for tax purposes. This Option shall be governed
by the laws of Delaware. This Option is not granted pursuant to any plan;
however, it is the intent of the Company that Optionee should have the same
rights and privileges as if this Option had been granted under the Company's
1996 Stock Option and Grant Plan (the "Plan"), a copy of which is attached
hereto and thus, certain provisions of the Plan, as amended from time to time,
have been incorporated herein by specific reference. To the extent incorporated
herein, capitalized terms used herein but not defined herein shall have the
meanings ascribed thereto in the Plan. Unless specifically incorporated herein
by express reference, the terms of the Plan shall not apply to this Option
Grant.
1. VESTING SCHEDULE. Subject to the provisions of Section 4 hereof,
this Option shall become vested and exercisable with respect to the following
whole number of Option Shares according to the timetable set forth below:
<TABLE>
<CAPTION>
Percentage of Cumulative
Number of Years Shares Becoming Percentage
After Date of Grant Available for Exercise Available
------------------- ---------------------- ---------
<S> <C> <C>
On Date of Grant 100% 100%
</TABLE>
<PAGE>
2. MANNER OF EXERCISE. The Optionee may exercise this Option only in
the following manner: from time to time on or prior to the Expiration Date of
this Option, the Optionee may give written notice to the Company's Option
Committee (the "Committee", being the same Committee referred to in Section 2(a)
of the Plan, which is expressly incorporated herein) of his election to purchase
some or all of the vested Option Shares purchasable at the time of such notice.
Such notice shall specify the number of shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one
or more of the following methods:
(a) in cash, by certified or bank check or other instrument acceptable
to the Committee;
(b) in the form of shares of Common Stock, par value $.001 per share,
of the Company (the "Common Stock") that are not then subject to
restrictions under any Company plan and that have been held by the
Optionee for at least six (6) months, if permitted by the Committee in
its discretion. Such surrendered shares shall be valued at Fair Market
Value (as defined in the Plan) 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 option purchase price; provided that in the
event the Optionee chooses to pay the option 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
Committee shall prescribe as a condition of such payment procedure.
Payment instruments will be received subject to collection. The
delivery of certificates representing the Option Shares will be contingent upon
the Company's receipt from the Optionee (or a purchaser acting in his stead in
accordance with this Option) by the Company of the full payment for the Option
Shares, as set forth above, and any agreement, statement or other evidence that
the Company may require to satisfy itself that the issuance of Option Shares to
be purchased pursuant to the exercise of this Option and any subsequent resale
of the Option Shares will be in compliance with applicable laws and regulations.
If requested upon the exercise of this Option, certificates for shares
may be issued in the name of the Optionee jointly with another person or in the
name of the executor or administrator of the Optionee's estate.
Notwithstanding any other provision hereof or of the Plan or any
amendment thereto, no portion of this Option shall be exercisable after the
Expiration Date hereof.
<PAGE>
3. NON-TRANSFERABILITY OF OPTION. This Option shall not be transferable
by the Optionee otherwise than by will or by the laws of descent and
distribution and this Option shall be exercisable, during the Optionee's
lifetime, only by the Optionee.
4. TERMINATION OF EMPLOYMENT. If the Optionee's employment by (or other
business relationship with) the Company and its Subsidiaries is terminated, the
extent to which and the period within which the Option may be exercised shall be
as set forth below.
(a) TERMINATION BY REASON OF DEATH. If the Optionee's
employment by (or other business relationship with) the
Company and its Subsidiaries is terminated by reason of death,
any Option held by the Optionee shall become fully exercisable
and may thereafter be exercised by the Optionee's legal
representative or legatee for a period of 12 months (or such
longer period as the Committee shall specify at any time) from
the date of death or until the Expiration Date, if earlier.
(b) TERMINATION BY REASON OF DISABILITY. If the Optionee's
employment by (or other business relationship with) the
Company and its Subsidiaries is terminated by reason of
Disability, any Option held by the Optionee shall become fully
exercisable and may thereafter be exercised for a period of 12
months (or such longer period as the Committee shall specify
at any time) from the date of such termination of employment
(or other business relationship) or until the Expiration Date,
if earlier. Except as otherwise provided by the Committee at
any time, the death of the Optionee during the twelve (12)
month period provided in this Section 4(b) shall extend such
period for 12 months from the date of death or until the
Expiration Date, if earlier.
(c) TERMINATION BY REASON OF RETIREMENT. If the Optionee's
employment (or other business relationship with) by the
Company and its Subsidiaries is terminated by reason of
Retirement, any Option held by the Optionee may thereafter be
exercised to the extent it was exercisable and the time of
such termination, for a period of 12 months (or such other
period as the Committee shall specify at any time) from the
date of such termination of employment (or other business
relationship) or until the Expiration Date, if earlier.
(d) TERMINATION FOR CAUSE. If the Optionee's employment by (or
other business relationship with) the Company and its
Subsidiaries is terminated for Cause, any Option held by the
Optionee, including any 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 Committee may, in its sole discretion, provide that such
Option can be exercised for a period of up to 30 days from the
date of such termination of employment (or other business
relationship) or until the Expiration Date, if earlier.
<PAGE>
(e) OTHER TERMINATION. Unless otherwise determined by the
Committee, if the Optionee's employment by (or other business
relationship with) the Company and its Subsidiaries is
terminated for any reason other than death, Disability,
Retirement or Cause, any Option held by the Optionee may
thereafter be exercised, to the extent exercisable on the date
of termination, for a period of three (3) months (or such
longer period as the Committee shall specify at any time) from
the date of such termination of employment (or other business
relationship) or until the Expiration Date, if earlier.
For this purpose, neither a transfer of employment from the Company to a
Subsidiary (or from a Subsidiary to the Company) nor an approved leave of
absence shall be deemed a "termination of employment."
5. OPTION SHARES. The Option Shares are shares of Common Stock as
constituted on the date of this Option award, subject to adjustment as provided
in Sections 3(b) and (c) of the Plan, which are expressly incorporated herein.
In applying Section 3(b) of the Plan, the Committee shall treat the Option
Shares hereunder as if they were part of the Plan and authorized under the Plan.
6. NO SPECIAL EMPLOYMENT RIGHTS. This Option will not confer upon the
Optionee any right with respect to continuance of employment by the Company or
its Subsidiaries, nor will it interfere in any way with any right of the
Optionee's employer to terminate the Optionee's employment at any time.
7. RIGHTS AS A SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any Common Stock that may be purchased by exercise
of this Option unless and until a certificate or certificates representing such
shares are duly issued and delivered to the Optionee. Except as expressly
provided in the Plan or any amendment thereto, which provisions, if any from
time to time shall be deemed expressly incorporated herein, no adjustment shall
be made for dividends or other rights for which the record date is prior to the
date such share certificate is issued.
8. TAX WITHHOLDING. No later than the date as of which part or all of
the value of any shares of Common Stock received hereunder first becomes
includable in the Optionee's gross income for Federal tax purposes, the Optionee
shall make arrangements with the Company in accordance with Section 11 of the
Plan, which is expressly incorporated herein, regarding the payment of any
federal, state or local taxes required to be withheld with respect to such
income.
9. THE PLAN. In addition to those provisions of the Plan heretofore
expressly incorporated into this Agreement, the provisions of Sections 12, 15
and 16 of the Plan shall also apply to this Agreement, MUTATIS MUTANDIS,and are
hereby deemed to be expressly incorporated herein. To the extent of any
discrepancy of inconsistency between this Agreement and the provisions of the
Plan incorporated herein, the terms of this Agreement shall control.
<PAGE>
10. MISCELLANEOUS. Notices hereunder shall be mailed or delivered to
the Company at its principal place of business and shall be mailed or delivered
to Optionee at the address set forth below or, in either case, at such other
address as one party may subsequently furnish to the other party in writing.
SELFCARE, INC.
By
------------------
Name: Ron Zwanziger
------------------
Title: President and Ceo
------------------
Receipt of the foregoing Option is acknowledged and its terms and
conditions are hereby agreed to:
, Optionee
----------------------------------
Address:
-------------------------
-------------------------
-------------------------
Date:
--------------------
