<PAGE> 1
As filed with the Securities and Exchange Commission on September 20, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________________
CORAM HEALTHCARE CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 33-0615337
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
</TABLE>
4675 MACARTHUR COURT, SUITE 1250, NEWPORT BEACH, CA 92660
(Address of principal executive offices) (Zip Code)
________________________
CORAM HEALTHCARE CORPORATION
T2 Medical, Inc. 1988 Stock Option Plan
Curaflex Health Services, Inc. 1990 Stock Option Plan
Curaflex Health Services, Inc. 1989 Stock Option Plan
Curaflex Health Services, Inc. Directors' Non-Qualified Stock Option Plan
Clinical Home Care Ltd. 1990 Incentive Stock Option Plan
Clinical Home Care Ltd. 1990 Non-Qualified Stock Option Plan
Medisys, Inc. 1989 Stock Option Plan
Certain Options granted pursuant to Written Agreements
(Full title of the plans)
_______________________
JAMES M. SWEENEY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
CORAM HEALTHCARE CORPORATION
4675 MACARTHUR COURT, SUITE 1250, NEWPORT BEACH, CA 92660
(Name and address of agent for service)
(714) 955-8776
(Telephone number, including area code, of agent for service)
________________________
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
---------- ------------- --------- --------- -------------
<S> <C> <C> <C> <C>
Options to Purchase Common
- --------------------------
Stock:
- -----
T2 Medical, Inc. 1988
Stock Option Plan 1,783,593 N/A N/A N/A
Curaflex Health Services,
Inc. 1990 Stock Option Plan 722,420 N/A N/A N/A
Curaflex Health Services,
Inc. 1989 Stock Option Plan 37,842 N/A N/A N/A
Curaflex Health Services,
Inc. Directors' Non-Qualified
Stock Option Plan 39,960 N/A N/A N/A
</TABLE>
<PAGE> 2
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
---------- ------------- --------- --------- -------------
<S> <C> <C> <C> <C>
Clinical Home Care Ltd.
1990 Incentive Stock
Option Plan 6,157 N/A N/A N/A
Clinical Home Care Ltd.
1990 Non-Qualified
Stock Option Plan 45,537 N/A N/A N/A
Medisys, Inc. 1989
Stock Option Plan 115,802 N/A N/A N/A
Certain Options granted
pursuant to Written
Agreements:
A. Khan 2,430 N/A N/A N/A
D. Printy 1,944 N/A N/A N/A
D. Hanish 6,075 N/A N/A N/A
S. Sohn 12,150 N/A N/A N/A
M. Haid 4,558 N/A N/A N/A
1,458 N/A N/A N/A
D. Murphy 607 N/A N/A N/A
J. Schwartz 607 N/A N/A N/A
E. Sherman 1,672 N/A N/A N/A
S. Sokaliski 4,558 N/A N/A N/A
R. Vasquez 4,558 N/A N/A N/A
C. Wollenschlager 2,279 N/A N/A N/A
M. Cohen 1,094 N/A N/A N/A
L. White 1,094 N/A N/A N/A
D. Sales 1,094 N/A N/A N/A
I. Jurcik 1,094 N/A N/A N/A
Shares of Common Stock, par value
- ---------------------------------
$.001 per share:
- ---------------
T2 Medical, Inc. 1988
Stock Option Plan 1,783,593 $36.91(2) $65,832,417.63(2) $22,700.83
Curaflex Health Services,
Inc. 1990 Stock Option Plan 722,420 $18.47(2) $13,343,097.40(2) $4,601.07
Curaflex Health Services,
Inc. 1989 Stock Option Plan 37,842 $2.84(2) $107,471.28(2) $37.06
Curaflex Health Services,
Inc. Directors' Non-Qualified
Stock Option Plan 39,960 $27.00(2) $1,078,920.00(2) $372.04
Clinical Home Care
Ltd. 1990 Incentive
Stock Option Plan 6,157 $23.61(2) $145,366.77(2) $50.13
Clinical Home Care
Ltd. 1990 Non-Qualified
Stock Option Plan 45,537 $17.72(2) $806,915.64(2) $278.25
</TABLE>
BPHPA1\MMR\0070131.02
08/18/94 I-2.
<PAGE> 3
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share Price Fee
---------- ------------- --------- --------- -------------
<S> <C> <C> <C> <C>
Medisys, Inc. 1989
Stock Option Plan 115,802 $16.09(2) $1,863,254.18(2) $642.50
Certain Options granted
pursuant to Written
Agreements:
A. Khan 2,430 $41.16 $100,018.80 $34.49
D. Printy 1,944 $17.49 $ 34,000.56 $11.72
D. Hanish 6,075 $ 7.21 $ 43,800.75 $15.10
S. Sohn 12,150 $ 4.53 $ 55,039.50 $18.98
M. Haid 4,558 $ 3.094 $ 14,102.45 $ 4.86
1,458 $12.995 $ 18,946.71 $ 6.53
D. Murphy 607 $ 3.094 $ 1,878.06 $ 0.65
J. Schwartz 607 $ 3.094 $ 1,878.06 $ 0.65
E. Sherman 1,672 $ 3.094 $ 5,173.17 $ 1.78
S. Sokaliski 4,558 $ 3.094 $ 14,102.45 $ 4.86
R. Vasquez 4,558 $ 3.094 $ 14,102.45 $ 4.86
C. Wollenschlager 2,279 $ 3.094 $ 7,051.23 $ 2.43
M. Cohen 608 $12.994 $ 7,900.35 $ 2.72
486 $13.889 $ 6,750.05 $ 2.33
L. White 608 $12.994 $ 7,900.35 $ 2.72
486 $13.889 $ 6,750.05 $ 2.33
D. Sales 608 $12.994 $ 7,900.35 $ 2.72
486 $13.889 $ 6,750.05 $ 2.33
I. Jurcik 608 $12.994 $ 7,900.35 $ 2.72
486 $13.889 $ 6,750.05 $ 2.33
Aggregate Filing Fee $28,808.99
-------------------- ----------
</TABLE>
================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the T2 Medical Inc. 1988 Stock
Option Plan, the Curaflex Health Services, Inc. 1990 Stock Option Plan,
Directors' Non-Qualified Stock Option Plan, Clinical Home Care Ltd. 1990
Incentive Stock Option Plan and Clinical Home Care Ltd. 1990
Non-Qualified Stock Option Plan, the Medisys, Inc. 1989 Stock Option Plan
and the Options granted pursuant to Written Agreements by reason of any
stock dividend, stock split, recapitalization or other similar
transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of
Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price of the outstanding options.
BPHPA1\MMR\0070131.02
08/18/94 I-3.
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Coram Healthcare Corporation (the "Registrant") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Registrant's Current Report on Form 8-K, filed September
14, 1994.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1994.
(c) The Registrant's Current Report on Form 8-K, filed July 15,
1994.
(d) (1) The following documents previously filed with the
Commission by the Registrant's subsidiary T2 Medical,
Inc.:
(i) Annual Report on Form 10-K for the fiscal
year ended September 30, 1993;
(ii) Amendment to Annual Report on Form 10-K/A
filed with the Commission on January 28, 1994;
(iii) Quarterly Report on Form 10-Q for the fiscal
quarter ended December 31, 1993; and
(iv) Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1994.
(2) The following documents previously filed with the
Commission by the Registrant's subsidiary Medisys,
Inc.:
(i) Annual Report on Form 10-K for the fiscal
year ended December 31, 1993; and
(ii) Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1994.
(3) The following documents previously filed with the
Commission by the Registrant's subsidiary Curaflex
Health Services, Inc.:
(i) Annual Report on Form 10-K for the fiscal
year ended December 31, 1993; and
(ii) Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1994.
(e) (1) The Registrant's Proxy Statement filed with the
Commission on June 3, 1994 pursuant to Section 14(a)
of the Securities and Exchange Act of 1934 (the "1934
Act") in connection with the Registrant's
Registration Statement No. 33- 53957 on Form S-4, as
amended by Post-Effective Amendments Numbers 1, 2 and
3 filed with the Commission
BPHPA1\MMR\0070131.02
08/18/94 II-1.
<PAGE> 5
on June 7, 1994, June 17, 1994 and August 12, 1994,
respectively, in which there is described the terms,
rights and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements of
Registrant filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
As permitted by the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation eliminates the liability of directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law.
The Registrant's Bylaws provide that the Registrant will
indemnify each person who was or is made a party to any proceeding by reason of
the fact that such person is or was a director, officer, employee or agent of
the Registrant against all expense, liability and loss reasonably incurred or
suffered by such person in connection therewith to the fullest extent
authorized by the Delaware General Corporation Law.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit Number Exhibit
-------------- -------
<S> <C>
5 Opinion and Consent of Brobeck, Phleger & Harrison.
23.1 Consent of Independent Auditors - Deloitte & Touche LLP.
23.2 Consent of Independent Auditors - KPMG Peat Marwick LLP.
23.3 Consent of Independent Auditors - Coopers & Lybrand L.L.P.
23.4 Consent of Brobeck, Phleger & Harrison is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of this Registration Statement.
</TABLE>
BPHPA1\MMR\0070131.02
08/18/94 II-2.
<PAGE> 6
<TABLE>
<S> <C>
99.1 T2 Medical, Inc. 1988 Stock Option Plan. Incorporated by
reference to Exhibit 10(b) to the Annual Report on
Form 10-K filed by T2 Medical, Inc. for the fiscal year
ended September 30, 1992 (File No. 1-09868).
99.2 Form of Stock Option Assumption Agreement for Options
issued pursuant to the T2 Medical, Inc. 1988 Stock Option Plan.
99.3 Curaflex Health Services, Inc. 1990 Stock Option Plan.
99.4 Curaflex Health Services, Inc. 1989 Stock Option Plan.
99.5 Curaflex Health Services, Inc. Director's Non-Qualified Stock Option Plan.
99.6 Clinical Home Care Ltd. 1990 Incentive Stock Option Plan.
99.7 Clinical Home Care Ltd. 1990 Non-Qualified Stock Option Plan.
99.8 Form of Stock Option Assumption Agreement for Options
issued pursuant to the plans described in Exhibits 99.3 through 99.7.
99.9 Medisys, Inc. 1989 Stock Option Plan - Incorporated by
reference to Exhibit 28.1 to the Registration Statement
Number 33-46191 on Form S-8 filed with the Commission on
March 5, 1992 by Medisys, Inc.
99.10 Form of Stock Option Assumption Agreement for Options
issued to employees and officers pursuant to the Medisys,
Inc. 1989 Stock Option Plan.
99.11 Form of Stock Option Assumption Agreement for Options
issued to non-employee directors pursuant to the Medisys,
Inc. 1989 Stock Option Plan.
* 99.12 Amanullah Khan Stock Option Agreement dated January 21, 1992.
* 99.13 David Printy Stock Option Agreement dated October 16, 1990.
* 99.14 Dennis Hanish Stock Option Agreement dated October 16, 1990.
* 99.15 Sung Won Sohn, Ph.D. Stock Option Agreement dated December 31, 1990.
* 99.16 Max Haid, M.D. Stock Option Agreement dated December 4, 1992.
* 99.17 Dennis Murphy Stock Option Agreement dated December 4, 1992.
* 99.18 Jerrold Schwartz, M.D. Stock Option Agreement dated December 4, 1992.
* 99.19 Edward Sherman, M.D. Stock Option Agreement dated December 4, 1992.
* 99.20 Stephen Sokaliski, M.D. Stock Option Agreement dated December 4, 1992.
* 99.21 Richard Vasquez, M.D. Stock Option Agreement dated December 4, 1992.
* 99.22 Cynthia Wollenschlager, M.D. Stock Option Agreement dated December 4, 1992.
99.23 Max Haid, M.D. Stock Option Agreement dated February 24, 1994.
99.24 Michael Cohen, M.D. Stock Option Agreement dated February 24, 1994.
99.25 Michael Cohen, M.D. Stock Option Agreement dated May 24, 1994.
99.26 Loren White, M.D. Stock Option Agreement dated February 24, 1994.
99.27 Loren White, M.D. Stock Option Agreement dated May 24, 1994.
99.28 David Sales, M.D. Stock Option Agreement dated February 24, 1994.
99.29 David Sales, M.D. Stock Option Agreement dated May 24, 1994.
99.30 Igor Jurcik, M.D. Stock Option Agreement dated February 24, 1994.
99.31 Igor Jurcik, M.D. Stock Option Agreement dated May 24, 1994.
99.32 Form of Stock Option Assumption Agreement for Options
granted pursuant to Written Agreements described in
Exhibits 99.12 through 99.15 and 99.23 through 99.31.
99.33 Form of Stock Option Assumption Agreement for Options
granted pursuant to Written Agreements described in
Exhibits 99.16 through 99.22.
</TABLE>
* Exhibits 99.12 through 99.22 are incorporated herein by
reference to Exhibits 99.1 through 99.11, respectively, to
the Registration Statement Number 33-74652 on Form S-8
filed with the Commission on January 28, 1994 by Medisys,
Inc.
BPHPA1\MMR\0070131.02
08/18/94 II-3.
<PAGE> 7
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, as
amended (the "1933 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; provided, however, that clauses (1)(i) and (1)(ii)
shall not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into the Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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
T2 Medical, Inc. 1988 Stock Option Plan, Curaflex Health Services, Inc. 1990
Stock Option Plan, Curaflex Health Services, Inc. 1989 Stock Option Plan,
Curaflex Health Services, Inc. Directors' Non-Qualified Stock Option Plan,
Clinical Home Care Ltd. 1990 Incentive Stock Option Plan, Clinical Home Care
Ltd. 1990 Non- Qualified Stock Option Plan, Medisys, Inc. 1989 Stock Option
Plan and the Options granted pursuant to Written Agreements.
B. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the 1933 Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the 1934 Act that is incorporated by reference into 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 1933 Act may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been informed that, in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the 1933 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 1933
Act, and will be governed by the final adjudication of such issue.
BPHPA1\MMR\0070131.02
08/18/94 II-4.
<PAGE> 8
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 Ontario, State of California, on this
14th of September, 1994.
Coram Healthcare Corporation
By /s/James M. Sweeney
James M. Sweeney
Chief Executive Officer and
Chairman of the Board of
Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Coram
Healthcare Corporation, a Delaware corporation, do hereby constitute and
appoint James M. Sweeney and Sam R. Leno, and each of them, the lawful
attorneys and agents, with full power and authority to do any and all acts and
things and to execute any and all instruments which said attorneys and agents,
and any one of them, determine may be necessary or advisable or required to
enable said corporation to comply with the Securities Act of 1933, as amended,
and any rules or regulations or requirements of the Commission in connection
with this Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/James M. Sweeney Chief Executive Officer and September 14, 1994
- ---------------------------------- Chairman of the Board of Directors
James M. Sweeney (Principal Executive Officer)
/s/Sam R. Leno Chief Financial Officer September 14, 1994
- ---------------------------------- (Principal Financial and
Sam R. Leno Accounting Officer)
</TABLE>
BPHPA1\MMR\0070131.02
08/18/94 II-5.
<PAGE> 9
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/Tommy H. Carter Vice Chairman of the Board of Directors September 14, 1994
- ----------------------------------
Tommy H. Carter
/s/Miles E. Gilman Director September 14, 1994
- ----------------------------------
Miles E. Gilman
/s/Charles A. Laverty Director September 14, 1994
- ----------------------------------
Charles A. Laverty
/s/L. Peter Smith Director September 14, 1994
- ----------------------------------
L. Peter Smith
/s/Richard A. Fink Director September 14, 1994
- ----------------------------------
Richard A. Fink
/s/Stephen G. Pagliuca Director September 14, 1994
- ----------------------------------
Stephen G. Pagliuca
</TABLE>
BPHPA1\MMR\0070131.02
08/18/94 II-6.
<PAGE> 10
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
CORAM HEALTHCARE CORPORATION
BPHPA1\MMR\0070131.02
08/18/94
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Exhibit
- -------------- -------
<S> <C>
5 Opinion and Consent of Brobeck, Phleger & Harrison.
23.1 Consent of Independent Auditors - Deloitte & Touche LLP.
23.2 Consent of Independent Auditors - KPMG Peat Marwick LLP.
23.3 Consent of Independent Auditors - Coopers & Lybrand L.L.P.
23.4 Consent of Brobeck, Phleger & Harrison is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-5 of
this Registration Statement.
99.1 T2 Medical, Inc. 1988 Stock Option Plan. Incorporated by
reference to Exhibit 10(b) to the Annual Report on Form
10-K filed by T2 Medical, Inc. for the fiscal year ended
September 30, 1992 (File No. 1-09868).
99.2 Form of Stock Option Assumption Agreement for Options
issued pursuant to the T2 Medical, Inc. 1988 Stock Option Plan.
99.3 Curaflex Health Services, Inc. 1990 Stock Option Plan.
99.4 Curaflex Health Services, Inc. 1989 Stock Option Plan.
99.5 Curaflex Health Services, Inc. Director's Non-Qualified
Stock Option Plan.
99.6 Clinical Home Care Ltd. 1990 Incentive Stock Option Plan.
99.7 Clinical Home Care Ltd. 1990 Non-Qualified Stock Option Plan.
99.8 Form of Stock Option Assumption Agreement for Options
issued pursuant to the plans described in Exhibits 99.3 through 99.7.
99.9 Medisys, Inc. 1989 Stock Option Plan - Incorporated by
reference to Exhibit 28.1 to the Registration Statement
Number 33-46191 on Form S-8 filed with the Commission on
March 5, 1992 by Medisys, Inc.
99.10 Form of Stock Option Assumption Agreement for Options
issued to employees and officers pursuant to the Medisys,
Inc. 1989 Stock Option Plan.
99.11 Form of Stock Option Assumption Agreement for Options
issued to non-employee directors pursuant to the Medisys,
Inc. 1989 Stock Option Plan.
* 99.12 Amanullah Khan Stock Option Agreement dated January 21, 1992.
* 99.13 David Printy Stock Option Agreement dated October 16, 1990.
* 99.14 Dennis Hanish Stock Option Agreement dated October 16, 1990.
* 99.15 Sung Won Sohn, Ph.D. Stock Option Agreement dated
December 31, 1990.
* 99.16 Max Haid, M.D. Stock Option Agreement dated December 4, 1992.
* 99.17 Dennis Murphy Stock Option Agreement dated December 4, 1992.
* 99.18 Jerrold Schwartz, M.D. Stock Option Agreement dated December 4, 1992.
* 99.19 Edward Sherman, M.D. Stock Option Agreement dated December 4, 1992.
* 99.20 Stephen Sokaliski, M.D. Stock Option Agreement dated December 4, 1992.
* 99.21 Richard Vasquez, M.D. Stock Option Agreement dated December 4, 1992.
* 99.22 Cynthia Wollenschlager, M.D. Stock Option Agreement dated December 4, 1992.
99.23 Max Haid, M.D. Stock Option Agreement dated February 24, 1994.
99.24 Michael Cohen, M.D. Stock Option Agreement dated February 24, 1994.
99.25 Michael Cohen, M.D. Stock Option Agreement dated May 24, 1994.
99.26 Loren White, M.D. Stock Option Agreement dated February 24, 1994.
99.27 Loren White, M.D. Stock Option Agreement dated May 24, 1994.
99.28 David Sales, M.D. Stock Option Agreement dated February 24, 1994.
99.29 David Sales, M.D. Stock Option Agreement dated May 24, 1994.
99.30 Igor Jurcik, M.D. Stock Option Agreement dated February 24, 1994.
99.31 Igor Jurcik, M.D. Stock Option Agreement dated May 24, 1994.
</TABLE>
BPHPA1\MMR\0070131.02
08/18/94
<PAGE> 12
<TABLE>
<S> <C>
99.32 Form of Stock Option Assumption Agreement for Options granted pursuant to
Written Agreements described in Exhibits 99.12 through 99.15 and 99.23 through 99.31.
99.33 Form of Stock Option Assumption Agreement for Options granted pursuant to Written
Agreements described in Exhibits 99.16 through 99.22.
</TABLE>
* Exhibits 99.12 through 99.22 are incorporated herein by
reference to Exhibits 99.1 through 99.11, respectively, to
the Registration Statement Number 33-74652 on Form S-8
filed with the Commission on January 28, 1994 by Medisys,
Inc.
BPHPA1\MMR\0070131.02
08/18/94
<PAGE> 1
EXHIBIT 5
Opinion and Consent of Brobeck, Phleger & Harrison
<PAGE> 2
EXHIBIT 5
BROBECK, PHLEGER & HARRISON
Two Embarcadero Place
2200 Geng Road
Palo Alto, California 94303-0913
September 19, 1994
Coram Healthcare Corporation
4675 MacArthur Court, Suite 1250
Newport Beach, CA 92660
Re: Registration Statement for Offering of 2,798,583
Shares of Common Stock
Ladies and Gentlemen:
We refer to your registration on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, of (i) 47,272 shares
of Common Stock issuable under certain options granted pursuant to Written
Compensation Agreements and (ii) an aggregate of 2,751,311 shares of Common
Stock issuable under the following plans (collectively the "Plans"):
T2 Medical, Inc. 1988 Stock Option Plan;
Curaflex Health Services, Inc. 1990 Stock Option Plan;
Curaflex Health Services, Inc. 1989 Stock Option Plan;
Curaflex Health Services, Inc. Directors' Non-Qualified Stock Option Plan;
Clinical Home Care Ltd. 1990 Incentive Stock Option Plan;
Clinical Home Care Ltd. 1990 Non-Qualified Stock Option Plan; and
Medisys, Inc. 1989 Stock Option Plan.
These options were assumed by Coram Healthcare Corporation in
connection with the July 8, 1994 merger pursuant to which T2 Medical, Inc.,
Curaflex Health Services, Inc., HealthInfusion, Inc. and Medisys, Inc. became
separate, wholly-owned subsidiaries of Coram Healthcare Corporation.
We advise you that, in our opinion, when such shares have been issued
and sold pursuant to the applicable provisions of the Written Compensation
Agreements and the Plans and in accordance with the Registration Statement,
such shares will be validly issued, fully paid and nonassessable shares of the
Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Brobeck, Phleger & Harrison
BROBECK, PHLEGER & HARRISON
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors - Deloitte & Touche LLP
<PAGE> 2
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT AND REPORT ON SCHEDULES
To the Board of Directors and Stockholders of
T2 Medical, Inc.
Alpharetta, Georgia
We consent to the incorporation by reference in this Registration Statement of
Coram Healthcare Corporation on Form S-8 of our report dated November 17, 1993
(December 23, 1993 as to Note 17) (which expresses an unqualified opinion and
includes an explanatory paragraph relating to material uncertainties concerning
pending claims against the Company) appearing in the Annual Report on Form 10-K
of T2 Medical, Inc. for the year ended September 30, 1993.
Our audits of the financial statements referred to in our aforementioned report
also included the financial statement schedules of T2 Medical, Inc., listed in
Item 14 of the Annual Report on Form 10-K of T2 Medical, Inc. for the year
ended September 30, 1993. These financial statement schedules are the
responsibility of T2 Medical, Inc.'s management. Our responsibility is to
express an opinion based on our audits. In our opinion, such financial
statement schedules, when considered in relation to the basic financial
statements taken as a whole, present fairly in all material respects the
information set forth therein.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Atlanta, Georgia
September 13, 1994
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Auditors - KPMG Peat Marwick
<PAGE> 2
EXHIBIT 23.2
Consent of Independent Auditors - KPMG Peat Marwick LLP
KPMG Peat Marwick
Certified Public Accountants
Inland Empire Office
One Lakeshore Centre
3281 Guasti Road, Suite 550
Ontario, CA 91761
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Coram Healthcare Corporation
We consent to the incorporation by reference in the registration statement on
Form S-8 of Coram Healthcare Corporation of our report dated February 28, 1994
relating to the consolidated balance sheets of Curaflex Health Services, Inc.
and subsidiaries as of December 31, 1993 and 1992, and the related consolidated
statements of operations, common stockholders' equity (deficit), and cash flows
for each of the years in the three-year period ended December 31, 1993, and all
related schedules, which report appears in the December 31, 1993 annual report
on Form 10-K of Curaflex Health Services, Inc. and subsidiaries.
Our report contains an explanatory paragraph that states the Company changed
its method of accounting for income taxes in 1993.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Ontario, California
September 13, 1994
<PAGE> 1
EXHIBIT 23.3
Consent of Independent Auditors - Coopers & Lybrand L.L.P.
<PAGE> 2
EXHIBIT 23.3
Consent of Independent Auditors - Coopers & Lybrand L.L.P.
Coopers Coopers & Lybrand L.L.P.
& Lybrand L.L.P. a professional services firm
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Coram Healthcare Corporation on Form S-8 for (i) the outstanding options
previously granted under the stock plans of T2 Medical Corporation, Curaflex
Health Services, Inc., HealthInfusion, Inc. and Medisys, Inc. and their
predecessor companies and (ii) the outstanding options to purchase shares of
Medisys, Inc. which were granted pursuant to written agreements rather than
under a plan, all of which options have now been assumed by the Company, of
our report dated February 11, 1994, on our audits of the consolidated financial
statements and financial statement schedules of Medisys, Inc. and Subsidiaries
as of December 31, 1993 and 1992 and for the years ended December 31, 1993,
1992, and 1991, which report is included in the Medisys, Inc. Annual Report on
Form 10-K and the Coram Healthcare Corporation registration statement on
Form S-4.
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Minneapolis, Minnesota
September 15, 1994
<PAGE> 1
EXHIBIT 99.2
Form of Stock Option Assumption Agreement for Options issued pursuant
to the T2 Medical, Inc. 1988 Stock Option Plan.
<PAGE> 2
EXHIBIT 99.2
STOCK OPTION ASSUMPTION AGREEMENT
OPTIONEE: 1~,
NUMBER OF T2 SHARES: 2~
GRANT DATE: 3~
ORIGINAL EXERCISE PRICE PER SHARE:
WHEREAS, the undersigned Optionee was previously granted the stock option
described above (the "Option") to purchase shares of the common stock of T2
Medical, Inc. ("T2 ") pursuant to the T2 1988 Stock Option Plan (the "Plan").
WHEREAS, T2 has become a wholly-owned subsidiary of Coram Healthcare
Corporation, a Delaware corporation ("Coram"), pursuant to a merger transaction
effected July ___, 1994 (the "Merger") in accordance with the terms and
provisions of that certain Agreement and Plan of Merger dated as of February 6,
1994 and amended May 25, 1994 (the "Merger Agreement") by and among Coram, T2,
Curaflex Health Services, Inc., HealthInfusion, Inc., Medisys, Inc., T2
Acquisition Company, CHS Acquisition Company, HII Acquisition Company and MI
Acquisition Company.
WHEREAS, the Option was outstanding at the time of the Merger and eligible
for assumption by Coram in accordance with the provisions of the Plan and the
agreement evidencing the Option (the "Option Agreement").
WHEREAS, pursuant to Section 7.8 of the Merger Agreement, all options
outstanding under the Plan at the time of the Merger, including the Option,
were to be assumed by Coram and become options to purchase shares of Coram
common stock.
WHEREAS, pursuant to the provisions of the Merger Agreement, the exchange
ratio in effect for the Merger is 0.63 share of Coram common stock for each
outstanding share of T2 common stock (the "Exchange Rate").
WHEREAS, certain adjustments to the Option are necessary to reflect the
effect of the assumption of that Option by Coram in connection with the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. Coram hereby assumes all the duties and obligations of T2 under the
Option and hereby agrees to issue up to the number of shares of Coram common
stock indicated below upon (i) the exercise of that Option in accordance with
the provisions of the Option Agreement (as supplemented hereby) and (ii) the
payment of the adjusted exercise price per share set forth below.
BPHPA1\SJD\0063816.01B
08/19/94
<PAGE> 3
<TABLE>
<CAPTION>
T2 CORAM
STOCK OPTION ASSUMED OPTION
------------ --------------
# of Shares # of Shares Adjusted
T2 Exercise Coram Exercise
Common Stock Price/Share Common Stock Price/Share
------------ ----------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
2. The number of shares of Coram common stock purchasable under the Option
hereby assumed (the "Assumed Option") and the exercise price per share payable
thereunder have been adjusted to reflect the Exchange Rate at which the
outstanding shares of T2 common stock have been converted into shares of Coram
common stock on the consummation of the Merger. The intent of such adjustments
is to assure that the spread between the aggregate fair market value of the
Coram shares purchasable under the Assumed Option and the aggregate exercise
price as adjusted hereunder payable for such shares will, immediately after the
Merger, substantially equal and not exceed the spread which existed immediately
prior to the Merger between the then aggregate fair market value of T2 common
stock subject to the Option and the aggregate exercise price in effect at such
time under the Option. Such adjustments are also designed to preserve, on a
per share basis immediately after the Merger, the same ratio of fair market
value per option share to exercise price per share which existed under the
Option immediately prior to the Merger.
3. All references to the "Company" in the Option Agreement shall be deemed
to include Coram, and all references to "Common Stock" shall be deemed to refer
to the shares of Coram common stock now subject to the Assumed Option. For
purposes of determining the holding period of any shares of Coram common stock
delivered in payment of the exercise price of the Assumed Option, the period
for which such shares were held as T2 common stock prior to the Merger shall be
taken into account.
4. The Assumed Option shall continue to have a maximum ten (10)-year term
measured from the original grant date of the Option, and all references to the
"Grant Date" in the Option Agreement shall continue to relate to that original
grant date. The Assumed Option, however, shall be subject to earlier
termination in accordance with the provisions of the Option Agreement should
the Optionee's service with T2 terminate.
However, for all purposes of the Option Agreement, the Optionee shall be deemed
to continue in service status for so long as such individual continues in the
employ of T2, Coram or any other Coram subsidiary corporation now or hereafter
existing, or Coram.
5. The exercise/vesting schedule in effect for the shares of Coram common
stock issuable under the Assumed Option shall remain the same as in effect
under the Option immediately prior to the Merger. Accordingly, no acceleration
of vesting or exercisability shall be deemed to have occurred by reason of the
Merger.
BPHPA1\SJD\0063816.01B
08/19/94 2.
<PAGE> 4
6. All notices to T2 required or permitted to be given to the T2 pursuant
to the provisions of the Option Agreement shall be given to Coram at the
following address:
______________________________
______________________________
______________________________
7. Except to the extent specifically modified by this Option Assumption
Agreement, all of the terms and conditions of the Option Agreement as in effect
immediately prior to the Merger shall continue in full force and effect and
shall not in any way be amended, revised or otherwise affected by this Option
Assumption Agreement.
IN WITNESS WHEREOF, Coram Healthcare Corporation has caused this Option
Assumption Agreement to be executed on its behalf by its duly- authorized
officer as of the ___ day of July 1994.
CORAM HEALTHCARE CORPORATION
By: _____________________________
_____________________________
Title: __________________________
BPHPA1\SJD\0063816.01B
08/19/94 3.
<PAGE> 5
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to the Option as assumed by Coram Healthcare Corporation are as set
forth in the Option Agreement, the Plan and such Stock Option Assumption
Agreement.
___________________________
OPTIONEE
Dated: ______________, 1994
BPHPA1\SJD\0063816.01B
08/19/94 4.
<PAGE> 1
EXHIBIT 99.3
Curaflex Health Services, Inc. 1990 Stock Option Plan.
<PAGE> 2
EXHIBIT 99.3
CURAFLEX HEALTH SERVICES, INC.
1990 STOCK OPTION PLAN
1. Purpose. This 1990 Stock Option Plan ("Plan") is intended to encourage
stock ownership by directors and key employees of CURAFLEX Health Services,
Inc., a Delaware corporation ("Corporation"), its divisions and any Subsidiary
Corporation (as defined in Section 8 below), so that such directors and
employees may acquire or increase their proprietary interests in the
Corporation, and to encourage such directors and employees to remain as
directors or in the employ of the Corporation and to put forth maximum efforts
for the success of the Corporation's business.
2. Type of Options: Options granted under the Plan ("Options") may be of
two types: (i) an Option designated by the Committee (as defined below) as an
Incentive Stock Option pursuant to Section 422A of the Internal Revenue Code of
1986, as amended (an "Incentive Stock Option"); and (ii) an Option not
designated by the Committee as an Incentive Stock Option ("Non-Qualified Stock
Options"). Subject to the limitations herein contained with respect to
Incentive Stock Options, the Committee may grant Incentive Stock Options,
Non-Qualified Stock Options, or both types of Options to a Participant (as
defined below) and the Committee shall have complete discretion in determining
the number of Options granted to each Participant. To the extent that any
Option does not qualify as an Incentive Stock Option, it shall constitute a
separate Non- Qualified Stock Option. The provisions of Options need not be the
same with respect to each Participant granted an Option.
3. Administration. The Plan shall be administered by the Compensation
Committee ("Committee"), consisting of not less than two members of the Board
of Directors of the Corporation ("Board") to be selected by the Board from time
to time.
3.1 Authority. The Committee shall have the authority in its discretion to
(i) administer the Plan and exercise all power hereunder; (ii) determine the
persons to whom and the time or times at which Options shall be granted,
provided that no Option shall be granted if the number of persons granted
Options in any six month period would exceed thirty-five (35) or if such grant
would require the qualification or registration of the Options or the Plan
under any securities laws (iii) determine the number of shares of Common Stock
(as defined in Section 4 below) to be covered by each Option; (iv) interpret
the Plan; (v) adopt and change rules and regulations relating to the Plan; and
(vi) determine the provisions of the Option Agreements (as defined in Section 5
below). All decisions, determinations and interpretations of the Committee
shall be final and binding on all Optionees.
BPHPA1\MMR\0072928.WP
08/12/94
<PAGE> 3
3.2 Rules. The Board shall fill any vacancies, however caused, in the
Committee. The Board may from time to time appoint additional members of the
Committee, and may at any time remove one or more Committee members and
substitute others. One member of the Committee shall be selected by the Board
as chairman. The Committee shall hold its meetings at such times and places as
it shall deem advisable. All determinations of the Committee shall be made by a
majority of its members either present in person or participating by conference
telephone at a meeting or by written consent. The Committee may make such rules
and regulations for the conduct of its business as it shall deem advisable, and
may appoint a Secretary who shall keep minutes of its meetings.
3.3 Liability. No member of the Board or Committee shall be liable for any
action taken or determination made in good faith with respect to the Plan or
any Option.
3.4 Eligible Employees. Directors of the Corporation and key employees of
the Corporation or of its Subsidiary Corporations, selected by the Committee
shall be eligible to participate in the Plan (a "Participant").
4. Stock. The stock subject to Options hereunder shall be shares of the
Corporation's Common Stock having a par value of $.001 per share (the "Common
Stock"). Such shares may, in whole or in part, be authorized but unissued
shares or shares that shall have been or that may be reacquired by the
Corporation. The aggregate number of shares of Common Stock as to which Options
shall have been granted from time to time under the Plan shall not exceed
twenty percent (20%) of the total shares that the Company is authorized to
issue. The limitation established by the preceding sentence shall be subject to
adjustment as provided in Section 5.7 hereof. If any outstanding Option expires
or is terminated without having been exercised in full, the shares of Common
Stock allocable to the unexercised portion of such Option shall (unless the
Plan shall have been terminated) become available for subsequent grants of
Options.
5. Terms and Conditions of Options. Each Option shall be evidenced by a
written Option Agreement ("Option Agreement") between the Corporation and the
person to whom the Option is granted ("Optionee"), which Option Agreement shall
comply with and be subject to the following terms and conditions:
5.1 Number of Shares. Each Option Agreement shall state the number of
shares of Common Stock to which the Option relates.
5.2 Option Price. Each Option Agreement shall state the Option price
("Option Price") of the shares of Common Stock on the date of grant of
the Option, and the Option Price shall be subject to adjustment as
provided in Section 5.7 hereof. The date on which the Committee
adopts a resolution expressly granting an Option shall be considered the
day on which such Option is granted. The Option Price of shares subject
to any Incentive Stock Option shall not be less than the Fair Market Value
(as defined below) of the Common Stock at the time the Incentive Stock
Option is granted. The exercise price of
BPHPA1\MMR\0072928.WP
08/12/94 2.
<PAGE> 4
shares subject to any Non-Qualified Stock Option shall be such price as the
Committee shall determine on the date on which such Non-Qualified Stock Option
is granted, provided that such exercise price may not be less than 85% of the
Fair Market Value of the Common Stock at the time the Non-Qualified Stock
Option is granted if a registration statement under the Securities Act of 1933,
as amended, with respect to the Common Stock has become effective. "Fair Market
Value" means for any given day (i) the closing sales price on such date of a
share of Common Stock as reported on the principal securities exchange on which
such shares of Common Stock are then listed or admitted to trading or as
reported on the National Association of Securities Dealers Automated Quotation
("NASDAQ") National Market System, (ii) if not so reported, the average of the
bid and ask prices on such date as reported on the NASDAQ System published in
The Wall Street Journal or (iii) if no such quotations are available, the price
per share of Common Stock or equivalent sold in the latest offering by the
Corporation with aggregate proceeds of over $500,000.
5.3 Medium and Time of Payment. The Option Price shall be paid in full, at
the time of exercise, in cash or, at the sole discretion of the Committee, in
shares of Common Stock having a Fair Market Value on the date of exercise equal
to such Option Price or in a combination of cash and such shares, and may be
effected in whole or in part with monies received from the Corporation at the
time of exercise as a compensatory cash payment; provided, however, that each
such method and time for payment shall be permitted by and be in compliance
with applicable law.
5.4 Term and Exercise of Options. Subject to the vesting schedule set
forth in the Option Agreement which shall be determined by the Committee, an
Option may be exercised at any time after the date of grant and before the
expiration of 10 years from the date of grant by giving written notice of such
exercise to the Secretary of the Corporation; provided, however, that an Option
may not be exercised at any one time as to fewer than 100 shares (or such
number of shares as to which the Option is then exercisable if such number of
shares is less than 100).
5.5 Termination of Options. An Option shall automatically terminate (i)
upon breach by the Optionee of any provision of the applicable Option
Agreement, (ii) upon cessation of the Optionee's employment by the Corporation
or a Subsidiary Corporation for any reason other than the death of the
Optionee; provided, that, in the case of termination other than for cause, the
Optionee shall have 30 days (or such longer period as permitted by the
Committee in its sole discretion) after such termination to exercise the Option
to the extent exercisable in accordance with the Option Agreement or (iii)
upon cessation of the Optionee's employment by the Corporation or a Subsidiary
Corporation due to the death of the Optionee; provided, that the Optionee's
estate shall have 180 days (or such longer period as permitted by the Committee
in its sole discretion) after such termination to exercise the Option to the
extent exercisable in accordance with the Option Agreement. Nothing in the Plan
or in any Option Agreement shall confer upon an individual any right to
continue in the employ of the Corporation or any of its Subsidiary Corporations
BPHPA1\MMR\0072928.WP
08/12/94 3.
<PAGE> 5
or interfere in any way with the right of the Corporation or any such
Subsidiary Corporation to terminate such employment.
5.6 Restriction Agreement. As a condition to exercise any Option, the
Optionee shall have entered into an Optionee Restriction Agreement with the
Corporation in the form then being used by the Corporation, if any.
5.7 Effect of Certain Changes.
(a) If all or any portion of an Option is exercised subsequent to any
stock dividend, split up, recapitalization, combination or exchange of shares,
merger, consolidation, acquisition of property or stock, separation,
reorganization or liquidation, as a result of which shares of Common Stock
shall be changed into the same or a different number of shares of the same or
another class or classes, the person or persons exercising the Option shall
receive for the aggregate price payable upon such exercise of the Option, the
aggregate number and class of shares which, if shares of Common Stock (as
authorized at the date of grant of the Option) had been purchased at the date
of grant of the Option for the same aggregate price (on the basis of the price
per share provided in the Option) and had not been disposed of, such person or
persons would be holding at the time of such exercise, as a result of such
purchase and any such stock dividend, split up, recapitalization, combination
or exchange of shares, merger, consolidation, acquisition of property or stock,
separation, reorganization or liquidation; provided, however, that no
fractional share shall be issued upon any such exercise, and the aggregate
price paid shall be appropriately reduced on account of any fractional share
not issued. In the event of any such change in the outstanding Common Stock of
the Company, the aggregate number and class of shares remaining available under
the Plan shall be that number and class which a person, to whom an Option had
been granted for all of the available shares under the Plan on the date
preceding such change, would be entitled to receive as provided in the first
sentence of this paragraph.
(b) In the event of a change in the Common Stock as presently constituted
which is limited to a change of all of its authorized shares with par value
into the same number of shares with a different par value or without par value,
the shares resulting from any such change shall be deemed to be the Common
Stock within the meaning of the Plan.
(c) To the extent that the foregoing adjustments relate to stock or
securities of the Corporation, such adjustments shall be made by the Committee,
whose determination in that respect shall be final, binding and conclusive.
(d) Except as otherwise provided in this Section 5.7, the Optionee shall
have no rights by reason of any subdivision or consolidation of shares of stock
of any class or the payment of any stock dividend or any other increase or
decrease in the number of shares of stock of any class, and any issuance by the
Corporation of shares of stock of any class shall not affect, and no adjustment
by reason thereof shall be made with respect to,
BPHPA1\MMR\0072928.WP
08/12/94 4.
<PAGE> 6
the number or price of shares of Common Stock subject to the Option. The grant
of an Option pursuant to the Plan shall not affect in any way the right or
power of the Corporation to make any adjustment, reclassification,
reorganization or change of its capital or business structure or to merge or to
consolidate or to dissolve, liquidate or sell, or transfer all or part of its
business or assets.
5.8 Rights as a Stockholder. An Optionee or a transferee of an Option
shall have no rights as a stockholder with respect to any shares of Common
Stock covered by the Option until the date of the issuance of a certificate
evidencing such shares. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distribution
of other rights for which the record date is prior to the date such certificate
is issued, except as provided in Section 5.7.
5.9 Incentive Stock Options.
(a) Incentive Stock Options may be granted only to employees of the
Corporation or any of its Subsidiary Corporations.
(b) The aggregate Fair Market Value (determined as of the time the Option
is granted) of the Common Stock with respect to which Options are exercisable
for the first time by any Participant during any calendar year (under all such
plans of the Company and its Subsidiary Corporations) shall not exceed
$100,000.
(c) No Incentive Stock Option shall be granted to a Participant who, at
the time the Incentive Stock Option is granted, owns (within the meaning of
Section 422A of the Code) Capital Stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company or any Subsidiary
Corporation unless, at the time the Incentive Stock Option is granted, the
exercise price per share of Common Stock is at least 110% of the Fair Market
Value of the Common Stock and the Incentive Stock Option by its terms is not
exercisable after the expiration of 10 years from the date of grant.
(d) Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, admitted or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify the Plan under Section 422A of the Code, or,
without the consent of the Participants affected, to disqualify any Incentive
Stock Option under Section 422A.
5.10 Other Provisions. The Option Agreements authorized under the Plan
shall contain such other provisions, including, without limitation, (i) the
imposition of restrictions upon the exercise of an Option, (ii) the prohibition
of the transfer or assignment of an Option except by will or laws of descent
and distribution and (iii) conditions relating to compliance with applicable
federal and state securities laws, as the Committee shall deem advisable.
BPHPA1\MMR\0072928.WP
08/12/94 5.
<PAGE> 7
6. Agreement By Optionee Regarding Withholding Taxes. If the Committee
shall so require, as a condition of the exercise of any Option, each Optionee
shall agree that (i) no later than the date of exercise of any Option, the
Optionee will pay to the Corporation or make arrangements satisfactory to the
Committee regarding payment in cash or shares of Common Stock valued at their
Fair Market Value on the date of exercise of any federal, state or local taxes
of any kind required by law to be withheld upon the exercise of such Option,
and (ii) the Corporation shall, to the extent permitted or required by law,
have the right to deduct federal, state and local taxes of any kind required by
law to be withheld upon the exercise of such Option from any payment of any
kind otherwise due to the Optionee.
7. Term of Plan. Options may be granted pursuant to the Plan from time to
time within a period of 10 years from the date the Plan is adopted by the
Board, or the date the Plan is approved by the stockholders of the Corporation,
whichever is earlier.
8. Subsidiary Corporation. As used in the Plan, "Subsidiary Corporation"
shall mean any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the employer corporation if, at the time of
granting an Option, each of the corporations other than the last corporation
possesses the unbroken voting power of all classes of stock in one of the other
corporations in such chain.
9. Amendment and Termination of the Plan. The Board at any time and from
time to time may suspend, terminate, modify or amend the Plan. Except as
provided in Section 5.7 hereof no suspension, termination, modification or
amendment of the Plan may adversely offset any Option previously granted,
unless the written consent of the Optionee is obtained.
10. Effect of Headings. The section and subsection headings contained
herein are for convenience only and shall not affect the construction hereof.
BPHPA1\MMR\0072928.WP
08/12/94 6.
<PAGE> 1
EXHIBIT 99.4
Curaflex Health Services, Inc. 1989 Stock Option Plan.
<PAGE> 2
EXHIBIT 99.4
CURAFLEX HEALTH SERVICES, INC.
1989 STOCK OPTION PLAN
1. Purpose
The 1989 Stock Option Plan ("Plan") provides for the grant of Stock Options
to Employees of CURAFLEX Health Services, Inc. (the "Company"), and such of its
subsidiaries (as defined in Section 425(f) of the Internal Revenue Code of 1986
(the "Code")) as the Board of Directors of the Company (the "Board") shall from
time to time designate ("Participating Subsidiaries"), in order to advance the
interests of the Company and its Participating Subsidiaries through the
motivation, attraction and retention of their respective Employees.
2. Incentive Stock Options and Non-Incentive Stock Options
The Stock Options granted under the Plan may be either:
(a) Incentive Stock Options ("ISOs") which are intended to be "Incentive
Stock Options" as that term is defined in Section 422A of the Code; or
(b) Nonstatutory Stock Options ("NSOs") which are intended to be options
that do not qualify as "Incentive Stock Options" under Section 422A of the
Code.
All Stock Options shall be ISOs unless the Option Agreement clearly
designates the Stock Options granted thereunder, or a specified portion
thereof, as NSOs. Subject to the other provisions of the Plan, a Participant
may receive ISOs and NSOs at the same time, provided that the ISOs and NSOs are
clearly designated as such.
Except as otherwise expressly provided herein, all of the provisions and
requirements of the Plan relating to Stock Options shall apply to ISOs and
NSOs.
3. Administration
3.1 Board. With respect to grants of Stock Options to Employees other
than directors of the Company, the Plan shall be administered by the full
Board. With respect to grants of Stock Options to directors, the Plan shall be
administered by the Board of Directors, a majority of whom are Disinterested
Persons, or by a special committee appointed by the Board of Directors composed
of at least three Disinterested Persons. The
BPHPA1\MMR\0072931.WP
08/12/94
<PAGE> 3
Board shall have full authority to administer the Plan, including authority to
interpret and construe any provision of the Plan and any Stock Option granted
thereunder, and to adopt such rules and regulations for administering the Plan
as it may deem necessary in order to comply with the requirements of the Code
or in order that Stock Options that are intended to be ISOs will be classified
as incentive stock options under the Code, or in order to conform to any
regulation or to any change in any law or regulation applicable thereto. The
Board may delegate any of its responsibilities under the Plan, other than its
responsibility to grant Stock Options or to interpret and construe the Plan.
3.2 Actions of the Board. All actions taken and all interpretations and
determinations made by the Board in good faith (including determinations of
Fair Market Value) shall be final and binding upon all Participants, the
Company and all other interested persons. No member of the Board shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, and all members of the Board shall, in addition
to their rights as directors, be fully protected by the Company with respect to
any such action, determination or interpretation.
4. Definitions
4.1 "Stock Option." A Stock Option is the right granted under the Plan
to an Employee to purchase, at such time or times and at such price or prices
("Option Price") as are determined by the Board, the number of shares of Common
Stock determined by the Board.
4.2 "Redemption Value." The Redemption Value of shares of Common Stock
purchasable under a Stock Option shall be the amount, if any, by which the Fair
Market Value of one share of Common Stock on the date on which the Stock Option
is exercised exceeds the Option Price for such share.
4.3 "Common Stock." A share of Common Stock means a share of authorized
but unissued or reacquired Common Stock (par value $.0.001 per share) of the
Company.
4.4 "Fair Market Value." If the Common Stock is not traded publicly, the
Fair Market Value of a share of Common Stock on any date shall be determined,
in good faith, by the Board after such consultation with outside legal,
accounting and other experts as the Board may deem advisable, and the Board
shall maintain a written record of its method of determining such value. If
the Common Stock is traded publicly, the Fair Market Value of a share of Common
Stock on any date shall be the average of the representative closing bid and
asked prices, as quoted by the National Association of Securities Dealers
through NASDAQ (its automated system for reporting quotes), for the date in
question or, if the Common Stock is listed on the NASDAQ National Market System
or is listed on a national stock exchange, the officially quoted closing price
on NASDAQ or such exchange as the case may be, on the date in question.
BPHPA1\MMR\0072931.WP
08/12/94 2.
<PAGE> 4
4.5 "Employee." An Employee is an employee of the Company or any
Participating Subsidiary.
4.6 "Participant." A Participant is an Employee to whom a Stock Option
is granted.
4.7 "Disinterested Person." A Disinterested Person is a person who, at
the time he exercises discretion in administering the Plan, is not eligible,
and has not at any time within one year prior thereto been eligible, for
selection as a person to who Stock Options may be granted under this Plan or
any similar plan of the Company.
5. Eligibility and Participation
Grants of Stock Options may be made to Employees of the Company or any
Participating Subsidiary. Any director of the Company or of a Participating
Subsidiary who is also an Employee shall also be eligible to receive Stock
Options, but directors who are not Employees shall not be eligible to receive
Stock Options under the Plan. The Board shall from time to time determine the
Employees to whom Stock Options shall be granted, the number of shares of
Common Stock subject to each Stock Option to be granted to each such Employee,
the Option Price of such Stock Options, all as provided in this Plan. The
Option Price of any ISO shall be not less than the Fair Market Value on the
date the NSO is granted if the Board so determines. If an ISO is granted to an
Employee who then owns stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company or any parent or subsidiary
corporation of the Company, the Option Price of such NSO shall be at least 110%
of the Fair Market Value of the Common Stock subject to the ISO at the time
such ISO is granted, and such ISO shall not be exercisable after five years
after the date on which it was granted. Each Stock Option shall be evidenced
by a written agreement ("Option Agreement") containing such terms and
provisions as the Board may determine, subject to the provisions of this Plan.
6. Shares of Common Stock Subject to the Plan
6.1 Maximum Number. The maximum aggregate number of shares of Common
Stock that may be made subject to Stock Options shall be 8,524,765 authorized
but unissued shares. The aggregate Fair Market Value (determined as of the
time the ISO is granted) of the stock as to which all ISOs granted to an
individual may first become exercisable in a particular calendar year may not
exceed $100,000. If any shares of Common Stock subject to Stock Options are
not purchased or otherwise paid for before such Stock Options expire, such
shares may again be made subject to Stock Options.
6.2 Capital Changes. In the event any changes are made to the shares of
Common Stock (whether by reason of merger, consolidation, reorganization,
recapitalization, stock dividend in excess of ten percent (10%) at any single
time, stock split, combination of shares, exchange of shares, change in
corporate structure or otherwise),
BPHPA1\MMR\0072931.WP
108/12/94 3.
<PAGE> 5
appropriate adjustments shall be made in: (i) the number of shares of Common
Stock theretofore made subject to Stock Options, and in the purchase price of
said shares; and (ii) the aggregate number of shares which may be made subject
to Stock Options. If any of the foregoing adjustments shall result in a
fractional share, the fraction shall be disregarded, and the Company shall have
no obligation to make any cash or other payment with respect to such a
fractional share.
7. Exercise of Stock Options
7.1 Time of Exercise. Subject to the provisions of the Plan, including
without limitation Section 7.3, the Board, in its discretion, shall determine
the time when a Stock Option, or a portion of a Stock Option, shall expire.
Such time or times shall be set forth in the Option Agreement evidencing such
Stock Option. An ISO shall expire, to the extent not exercised, no later than
the tenth anniversary of the date on which it was granted. The Board may
accelerate the vesting of any Participant's Stock Option by giving written
notice to the Participant. Upon receipt of such notice, the Participant and
the Company shall amend the Option Agreement to reflect the new vesting
schedule. The acceleration of the exercise period of a Stock Option shall not
affect the expiration date of that Stock Option.
7.2 Exchange of Outstanding Stock. The Board, in its sole discretion,
may permit a Participant to surrender to the Company shares of the Common Stock
previously acquired by the Participant as part of full payment for the exercise
of a Stock Option. Such surrendered shares shall be valued at their Fair
Market Value on the date of exercise. Unless otherwise determined by the
Board, any such shares surrendered by the Participant shall have been held by
him for at least six months prior to surrender.
7.3 Use of Promissory Note; Exercise Loans. The Board may, in its sole
discretion, impose terms and conditions, including conditions relating to the
manner and timing of payments, on the exercise of Stock Options. Such terms
and conditions may include, but are not limited to, permitting a Participant to
deliver to the Company his promissory note as full or partial payment for the
exercise of a Stock Option; provided that, with respect to any promissory note
given as payment or partial payment for the exercise of an ISO, all terms of
such note shall be determined at the time a Stock Option is granted and set
forth in the Option Agreement. The Board, in its sole discretion, may
authorize the Company to make a loan to a Participant in connection with the
exercise of Stock Options, or authorize the Company to arrange or guarantee
loans to a participant by a third party.
7.4 Stock Restriction Agreement. The Board may provide that shares of
Common Stock issuable upon the exercise of a Stock Option shall, under certain
conditions, be subject to restrictions whereby the Company has a right of first
refusal with respect to such shares or a right or obligation to repurchase all
or a portion of such shares, which restrictions may survive a Participant's
term of employment with the Company. The
BPHPA1\MMR\0072931.WP
08/12/94 4.
<PAGE> 6
acceleration of time or times at which the Option becomes exercisable may be
conditioned upon the Participant's agreement to such restrictions.
7.5 Termination of Employment Before Exercise. If a Participant's
employment with the Company or a Participating Subsidiary shall terminate for
any reason, any Stock Option then held by the Participant, to the extent then
exercisable under the applicable Option Agreement(s), shall remain exercisable
after the termination of his employment (but in no event beyond ten years from
the date of grant of the Stock Option). If the Stock Option is not exercised
during the applicable period, it shall be deemed to have been forfeited and of
no further force or effect.
7.6 Disposition of Forfeited Stock Options. Any shares of Common Stock
subject to Stock Options forfeited by a Participant shall not hereafter be
eligible for purchase by the Participant but may be made subject to Stock
Options granted to other Participants.
8. No Contract of Employment
Nothing in this Plan shall confer upon the Participant the right to continue
in the employ of the Company, or any Participating Subsidiary, nor shall it
interfere in any way with the right of the Company, or any such Participating
Subsidiary, to discharge the Participant at any time for any reason whatsoever,
with or without cause. Nothing in this Article VIII shall affect any rights or
obligations of the Company under any written contract of employment.
9. No Rights as a Stockholder
A Participant shall have no rights as a stockholder with respect to any
shares of Common Stock subject to a Stock Option. Except as provided in
Section 6.2, no adjustment shall be made in the number of shares of Common
Stock issued to a Participant, or in any other rights of the Participant upon
exercise of a Stock Option by reason of any dividend, distribution or other
right granted to stockholders for which the record date is prior to the date of
exercise of the Participant's Stock Option.
10. Assignability
No Stock Option granted under this Plan, nor any other rights acquired by a
Participant under this Plan, shall be assignable to or transferable by a
Participant, other than by will or the laws of descent and distribution, and
are exercisable, during his lifetime, only by him. Notwithstanding the
preceding sentence, the Board may, in its sole discretion, permit the
assignment or transfer of an NSO and the exercise thereof by a person other
than a Participant, on such terms and conditions as the Board in its sole
discretion may determine. Any such terms shall be determined at the time the
NSO is granted, and shall be set forth in the Option Agreement. In the event
of his death, the Stock Option may be
BPHPA1\MMR\0072931.WP
08/12/94 5.
<PAGE> 7
exercised by the Personal Representative of the Participant's estate or, if no
Personal Representative has been appointed, by the successor or successors in
interest determined under the Participant's will or under the applicable laws
of descent and distribution.
11. Merger or Liquidation of the Company
If the Company or its stockholders enter into an agreement to dispose of
all, or substantially all, of the assets or outstanding capital stock of the
Company by means of a merger or reorganization in which the Company is not the
surviving corporation, each Stock Option outstanding under the Plan as of the
day of the consummation of such merger or reorganization shall be converted
into an option (a "Converted Option") to purchase the kind and amount of shares
of stock and other securities in the surviving corporation receivable by the
holder of the number of shares of Common Stock for which such Stock Option was
exercisable immediately prior to such merger or reorganization. The vesting
schedule for each Converted Option shall be the same as the vesting schedule
for the Stock Option from which it was converted; provided that if within sixty
(60) months following the granting of the Stock Option any Participant whose
Stock Option was so converted:
(1) is terminated as an employee of the surviving corporation (other than
for gross misconduct or gross dereliction of his/her duties);
(2) is demoted or otherwise has his/her responsibilities as an employee
of the surviving corporation materially diminished (other than for gross
misconduct or gross dereliction of his/her duties); OR
(3) is required, as a condition of continued employment with the
surviving corporation, to relocate more than 50 miles from his/her
employment location with the Company on the date such merger or
reorganization was consummated,
then such Participant's Converted Option, to the extent not exercised, shall be
exercisable in full as of the date of such termination, demotion or required
relocation, even though the dates of exercise established pursuant to Section
7.1 of this Plan have not yet occurred. The obligations set forth in this
Article XI shall be binding on any successor or assignee of the Company.
12. Amendment
The Board may from time to time alter, amend, suspend or discontinue the
Plan, including, where applicable, any modifications or amendments as it shall
deem advisable in order that ISOs will be classified as incentive stock options
under the Code, or in order to conform to any regulation or to any change in
any law or regulation applicable thereto; provided, however, that no such
action shall adversely affect the rights and obligations with respect to Stock
Options at any time outstanding under the Plan; and
BPHPA1\MMR\0072931.WP
08/12/94 6.
<PAGE> 8
provided further that no such action shall, without the approval of the
stockholders of the Company (i) increase the maximum number of shares of Common
Stock that may be made subject to Stock Options (unless necessary to effect the
adjustments required by Section 6.2), (ii) materially increase the benefits
accruing to Participants under the Plan, or (iii) materially modify the
requirements as to eligibility for participation in the Plan.
13. Registration of Optioned Shares
The Stock Options shall not be exercisable unless the purchase of such
optioned shares is pursuant to an applicable effective registration statement
under the Securities Act of 1933, as amended, or unless, in the opinion of
counsel to the Company, the proposed purchase of such optioned shares would be
exempt from the registration requirements of the Securities Act of 1933, as
amended, and from the registration or qualification requirements of applicable
state securities laws.
14. Withholding Taxes
The Company or Participating Subsidiary may take such steps as it may deem
necessary or appropriate for the withholding of any taxes which the Company or
the Participating Subsidiary is required by any law or regulation or any
governmental authority whether federal, state or local, domestic or foreign, to
withhold in connection with any Stock Option, including, but not limited to,
the withholding of all or any portion of any payment or the withholding of
issuance of shares of Common Stock to be issued upon the exercise of Stock
Option until the Participant reimburses the Company or Participating Subsidiary
for the amount the Company or Participating Subsidiary is required to withhold
with respect to such taxes, or cancelling any portion of such payment or
issuance in any amount sufficient to reimburse itself for the amount it is
required to so withhold.
15. Brokerage Arrangements
The Board, at its discretion, may enter into arrangements with one or more
banks, brokers or other financial institutions to facilitate the disposition of
shares acquired upon exercise of the Stock Options including, without
limitation, arrangements for the simultaneous exercise of Stock Options, and
sale of the shares acquired upon such exercise.
16. Nonexclusivity of the Plan
Neither the adoption of the Plan by the Board nor the submission of the Plan
to Stockholders of the Company for approval shall be construed as creating any
limitations on the power or authority of the Board to adopt such other or
additional incentive or other compensation arrangements of whatever nature as
the Board may deem necessary or desirable or preclude or limit the continuation
of any other plan, practice or arrangement for the payment of compensation or
fringe benefits to employees generally, or to any class or group of employees,
which the Company or any Subsidiary now has lawfully put into
BPHPA1\MMR\0072931.WP
08/12/94 7.
<PAGE> 9
effect, including, without limitation, any retirement, pension, savings and
stock purchase plan, insurance, death and disability benefits and executive
short-term incentive plans.
17. Effective Date
This Plan was adopted by the Board of Directors on July 12, 1989 and became
effective on July 1, 1989. No Stock Options shall be granted subsequent to ten
years after the effective date of the Plan. Stock Options outstanding
subsequent to ten years after the effective date of the Plan shall continue to
be governed by the provisions of the Plan.
BPHPA1\MMR\0072931.WP
08/12/94 8.
<PAGE> 1
EXHIBIT 99.5
Curaflex Health Services, Inc. Director's Non-Qualified Stock Option Plan.
<PAGE> 2
EXHIBIT 99.5
CURAFLEX HEALTH SERVICES, INC.
DIRECTORS' NON-QUALIFIED STOCK OPTION PLAN
1. Establishment, Purpose and Definitions.
a. There is hereby adopted the Directors' Non-Qualified Stock Option Plan
(the "Plan") of Curaflex Health Services, Inc. (the "Company"). The Plan is
intended to provide a means whereby eligible directors of the Company, as
described in subparagraph 3(b) hereof ("Participants"), may be given an
opportunity to purchase shares of Stock, (as defined in subparagraph 3(a)
hereof) of the Company (the "Stock") pursuant to options which are not intended
to qualify as incentive stock options under Section 422A of the Internal
Revenue Code as amended from time to time.
b. The purpose of the Plan is to provide incentives to Participants for
increased efforts and successful achievements on behalf of or in the interests
of the Company while serving on the Company's Board of Directors (the "Board")
and to maximize the rewards due them for such increased efforts and successful
achievements.
c. The term "affiliates" as used in the Plan means parent or subsidiary
corporations, as defined in Section 425(e) and (f) of the Internal Revenue Code
(but substituting "the Company" for "employer corporation"), including parents
or subsidiaries which become such after adoption of the Plan.
2. Administration of the Plan.
The Plan shall be administered by the Board.
3. Stock Subject to the Plan.
a. Stock shall mean Common Stock, $0.001 par value, of the Company or
such stock as the Common Stock may be changed as contemplated by paragraph 11
hereof. The maximum number of shares of Stock which may be granted under the
Plan should be 500,000 shares, as adjusted pursuant to paragraph 11 hereof.
b. An option to purchase 10,000 shares of Stock shall be granted
("Initial Grant") to each director who is not an officer of the Company
("Non-Employee Director"), such Initial Grant to be made (i) to the then
existing Non-Employee Directors upon the closing of the Company's initial
public offering of its Stock in an underwriting pursuant to a registration
statement filed under the Securities Act of
BPHPA1\MMR\0072926.WP
08/12/94
<PAGE> 3
1933 ("IPO") and (ii) to other Non-Employee Directors elected or appointed to
the Board after the IPO upon the date each first becomes a Non- Employee
Director of the Company. Thereafter, immediately following each annual meeting
of the Company's stockholders, each Non-Employee Director who continues as a
Non-Employee Director following such annual meeting shall be granted an option
to purchase 5,000 shares of Stock ("Subsequent Grant"); provided that no
Subsequent Grant shall be made to any Non-Employee Director who has not served
as a director of the Company, as of the time of such annual meeting, for at
least one year. Each such Subsequent Grant shall be made on the date of the
annual stockholders' meeting in question. If any option ceases to be
exercisable in whole or in part, the shares which were subject to such option
but as to which the option had not been exercised shall continue to be
available under the Plan.
4. Eligibility.
All Non-Employee Directors shall be eligible to receive grants of Stock
options as provided in subparagraph 3(b) hereof.
5. Exercise Price for Options Granted under the Plan.
The exercise price per share of Stock covered by each option shall be the
per-share fair market value of the Stock on the date the option is granted;
provided that the exercise price per share of Stock covered by options
constituting Initial Grants under subparagraph 3(b)(i) above shall be the
per-share price to the public in the IPO. The exercise price of an option
granted under the Plan shall be subject to adjustment to the extent provided in
paragraph 11 hereof.
6. Terms and Conditions of Options.
a. Each option granted pursuant to the Plan shall be evidenced by a
written stock option agreement executed by the Company and the person to whom
such option is granted.
b. The stock option agreement or agreement covering Stock issued under
the Plan may contain such other terms, provisions and conditions as may be
determined by the Board and not inconsistent with the Plan. Each option
granted under the Plan shall vest and become exercisable as to 1/12 of the
shares covered thereby on a monthly basis such that the option will be fully
exercisable twelve (12) months after its date of grant.
7. Use of Proceeds.
Cash proceeds realized from the sale of Stock pursuant to Stock issued under
the Plan shall constitute general funds of the Company.
BPHPA1\MMR\0072926.WP
08/12/94 2.
<PAGE> 4
8. Assignability of Options.
Each option to purchase Stock granted pursuant to the Plan shall, during the
Participant's lifetime, be exercisable only by the Participant, and the option
shall not be transferable by the Participant by operation of law or otherwise
other than by will or the laws of descent and distribution.
9. Payment Upon Exercise.
Payment of the exercise price upon exercise of any option to purchase Stock
granted under the Plan shall be made in whole or in part with (i) cash, (ii)
Stock held by the Participant, (iii) notes, or (iv) or such other valuable
consideration as the Board, in its discretion, determines and is consistent
with the Plan's purpose and applicable law. Any Stock used to exercise options
to purchase Stock shall be valued at its fair market value on the date of the
exercise of the option. Any notes used to exercise options shall be full
recourse, interest- bearing obligations containing such terms as the Board
shall determine.
10. Withholding Taxes.
a. Shares of Stock issued hereunder shall be delivered to a Participant
only upon payment by such person to the Company of the amount of any
withholding tax which may be imposed thereon under the provisions of the
Internal Revenue Code as then in effect or any law of any other taxing
jurisdiction requiring such withholding tax.
b. The Board may, under such terms and conditions as it deems
appropriate, authorize a Participant to satisfy withholding tax obligations
under this paragraph 10 by electing to have the Company withhold from the Stock
to be issued to the Participant shares of Stock having a fair market value
equal of the amount of the withholding tax required to be withheld.
11. Adjustment Upon Changes in Capitalization.
a. Changes in Capitalization. If the number of shares of Stock of the
Company as a whole are increased, decreased or changed into, or exchanged for,
a different number or kind of shares or securities of the Company, whether
through merger, consolidation, reorganization, recapitalization,
reclassification, stock dividend, stock split, combination of shares, exchange
of shares, change in corporate structure or the like, an appropriate and
proportionate adjustment shall be made in the number and kind of shares of
Stock subject to the Plan, and in the number, kind and per share exercise price
of Stock subject to unexercised options or portions thereof granted prior to
any such change. Any such adjustment in an outstanding option, however, shall
be made without a change in the total price applicable to the unexercised
portion of the option
BPHPA1\MMR\0072926.WP
08/12/94 3.
<PAGE> 5
but with a corresponding adjustment in the price for each share of Stock
covered by the option.
b. Acquisition. Upon a reorganization, merger or consolidation in which
the Company is not the surviving corporation, or upon the sale of all or
substantially all of the property of the Company to another corporation,
provision shall be made in connection with such transaction for the assumption
of the Plan and the options theretofore granted hereunder by the successor
corporation. Provision may, alternatively, be made for the substitution for
such options of new options of the successor corporation (or a parent or
subsidiary thereof). In any such case, appropriate adjustment as to the number
and kind of shares and the per share exercise price shall be made. No
fractional shares of stock shall be issued under the Plan on account of any
adjustment specified above.
c. Dissolution or Liquidation. Upon the dissolution or liquidation of
the Company, the Plan and the options issued hereunder shall terminate.
12. Approval, Amendment and Termination of the Plan.
a. Approval. The Plan shall be adopted by the Board, and shall be
presented to the stockholders of the Company for their approval by vote at a
meeting of such stockholders duly held or by written consent in accordance with
Delaware law, such approval to be given within twelve (12) months before or
after the date of adoption hereof.
b. Amendment. The Board, without further approval of the stockholders,
may amend the Plan at any time and from time to time in such respects as the
Board may deem advisable, subject to any stockholder or regulatory approval
required by law, and to any conditions established by the terms of such
amendment; provided that in no event shall the Plan be amended more than once
every six (6) months other than to comport with changes in the Internal Revenue
Code, The Employee Retirement Income Security Act, or the rules thereunder, or
Rules promulgated by the Securities and Exchange Commission.
c. Termination and Suspension. The Board, without further approval of
the stockholders, may at any time terminate or suspend the Plan. Any such
termination or suspension of the Plan shall not affect options already granted
hereunder and such options shall remain in full force and effect as if the Plan
had not been terminated or suspended. No option may be granted hereunder while
the Plan is suspended or after it is terminated.
Rights and obligations under any option granted hereunder while the Plan
is in effect shall not be altered or impaired by suspension or termination of
the Plan, except with the consent of the person to whom the option was granted.
An option
BPHPA1\MMR\0072926.WP
08/12/94 4.
<PAGE> 6
hereunder may be terminated by agreement between the Participant and the
Company and, in lieu of the terminated option, a new option may be granted with
an exercise price which may be higher or lower than the exercise price of the
terminated option.
13. Conditions Upon Issuance of Stock.
Stock shall not be issued with respect to any option granted under the Plan
unless the exercise of such option and the issuance and delivery of such Stock
pursuant thereto shall comply with all relevant provisions of law, and the
requirements of any stock exchange upon which the Stock may then be listed, and
shall be further subject to the approval of counsel for the Company with
respect to such compliance. Inability of the Company to obtain authority from
any regulatory body having jurisdictional authority deemed by its counsel to be
necessary to the lawful issuance and sale of any Stock hereunder shall relieve
the Company of any liability in respect of the non-issuance or sale of such
Stock as to which such requisite authority shall not have been obtained.
14. Reservation of Shares.
The Company, during the term of the Plan, will at all times reserve and keep
available a number of shares of Stock as shall be sufficient to satisfy the
requirements of the Plan.
BPHPA1\MMR\0072926.WP
08/12/94 5.
<PAGE> 1
EXHIBIT 99.6
Clinical Home Care Ltd. 1990 Incentive Stock Option Plan.
<PAGE> 2
EXHIBIT 99.6
CLINICAL HOMECARE LTD.
1990 INCENTIVE STOCK OPTION PLAN
(AS AMENDED ON JULY 24, 1991 IN SECTION 10)
1. Purposes of the Plan. The purposes of this Stock Option Plan are to
attract and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees of the Company
and its parent and subsidiary corporations (now existing or hereafter formed or
acquired) and to promote the success of the Company's business.
The Plan seeks to accomplish these purposes through the granting of certain
stock options to purchase certain shares in the Company. It is intended that
options issued under the Plan will qualify as Incentive Stock Options within
the meaning of Section 422A of the Internal Revenue Code of 1986, as amended
(the "Code"), and the terms of the Plan shall be interpreted in accordance with
this intention.
2. Definitions. As used herein, the following definitions shall apply:
(a) "Board" shall mean the Board of Directors of the Company or the
Committee appointed by the Board.
(b) "Common Stock" shall mean the Common Stock of the Company.
(c) "Company" shall mean Clinical Homecare Ltd., a Delaware corporation.
(d) "Committee" shall mean the Committee appointed by the Board of
Directors in accordance with paragraph (a) of Section 4 of the Plan, if one is
appointed.
(e) "Continuous Status as an Employee" shall mean the absence of any
interruption or termination of service as an Employee. Continuous Status as an
Employee shall not be considered interrupted in the case of sick leave,
military leave, or any other leave of absence approved by the Board; provided,
however, either that such leave must be for a period of not more than 90 days
or that the re-employment upon the expiration of such leave must be guaranteed
by contract or statute.
(f) "Employee" shall mean any person, including officers and directors,
employed by the Company or any Parent or Subsidiary of the Company. The
payment of a director's fee by the Company shall not be sufficient to
constitute "employment" by the Company for purposes of eligibility under this
Plan.
BPHPA1\MMR\0072939.WP
108/14/94
<PAGE> 3
(g) "Incentive Stock Option" shall mean an Option intended to qualify as
an incentive stock option within the meaning of Section 422A of the Internal
Revenue Code of 1986, as amended.
(h) "Option" shall mean a stock option granted pursuant to the Plan.
(i) "Optioned Stock" shall mean the Common Stock subject to an Option.
(j) "Optionee" shall mean an Employee who receives an Option.
(k) "Parent" shall mean a "parent corporation" whether now or hereafter
existing, as defined in Section 425(e) of the Internal Revenue Code of 1986, as
amended.
(l) "Plan" shall mean this 1990 Incentive Stock Option Plan.
(m) "Share" shall mean a share of Common Stock of the Company.
(n) "Subsidiary" shall mean a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 425(f) of the Internal Revenue Code
of 1986, as amended.
3. Stock Subject to the Plan. Subject to the provisions of Section 11 of
the Plan, the maximum aggregate number of shares which may be optioned and sold
under the Plan is 350,000 shares of Common Stock. The Stock may be authorized,
but unissued, or reacquired Common Stock.
If an Option should expire or become unexercisable for any reason without
having been exercised in full, the unpurchased Shares which were subject
thereto, unless the Plan shall have been terminated, shall become available for
future grant under the Plan.
4. Administration of the Plan.
(a) Procedure. The Plan shall be administered by the Board of Directors
of the Company.
(i) Subject to Section 4(a)(ii) below, the Board of Directors may appoint
a Committee consisting of not fewer than two members of the Board of
Directors or one or more officers of the Company to administer the Plan on
behalf of the Board of Directors, subject to such terms and conditions as
the Board of Directors may prescribe. Once appointed, the Committee shall
continue to serve until otherwise directed by the Board of Directors. A
majority of the members of the Committee shall constitute a quorum, and the
act of a majority of the members of the Committee shall be the act of the
Committee. Any action may be taken by a written instrument signed by all
BPHPA1\MMR\0072939.WP
08/14/94 2.
<PAGE> 4
the members of the Committee, and action so taken shall be fully as
effective as if it had been taken by a unanimous vote of the members at a
meeting duly called and held.
Members of the Board who are either eligible for Options or have been
granted Options may vote on any matters affecting the administration of the
Plan or the granting of any Options pursuant to the Plan, except that no such
member shall act upon the granting of an Option to himself, but any such member
may be counted in determining the existence of a quorum at any meeting of the
Board during which action is taken with respect to the granting of Options to
him.
(ii) Notwithstanding the foregoing Section 4(a)(i), if the Company
registers any class of any equity security pursuant to Section 12 of the
Exchange Act, then from the effective date of such registration until six
months after the termination of such registration, any grants of options to
directors shall only be made by the Board; provided, however, that if a
majority of the Board is eligible to receive an option at any time within
the preceding year, then any grants of options to directors must be made by,
or only in accordance with the recommendation of, a Committee consisting of
three or more persons, who may, but need not be, directors or employees of
the Company, appointed by the Board of Directors and having full authority
to act in the matter, none of whom is eligible to participate in this Plan
or any other stock option or other stock plan of the Company or any of its
affiliates, or has been eligible at any time within the preceding year. Any
Committee administering the Plan with respect to grants to officers who are
not also directors shall conform to the requirements of the preceding
sentence.
(iii) From time to time the Board may increase the size of the Committee
and appoint additional members thereof, remove members (with or without
cause) and appoint new members in substitution therefor, fill vacancies,
however caused, or remove all members of the Committee and thereafter
directly administer the Plan.
(b) Powers of the Board. Subject to the provisions of the Plan, the Board
shall have the authority, in its discretion:
(i) to grant Incentive Stock Options in accordance with Section 422A of
the Internal Revenue Code of 1986, as amended;
(ii) to determine, upon review of relevant information and in accordance
with Section 8(b) of the Plan, the fair market value of the Common Stock;
BPHPA1\MMR\0072939.WP
08/14/94 3.
<PAGE> 5
(iii) to determine the exercise price per share of Options to be granted,
which exercise price shall be determined in accordance with Section 8(a) of
the Plan;
(iv) to determine the Employees to whom, and the time or times at which,
Options shall be granted and the number of shares to be represented by each
Option;
(v) to interpret the Plan;
(vi) to prescribe, amend and rescind rules and regulations relating to the
Plan;
(vii) to determine the terms and provisions of each Option granted (which
need not be identical) and, with the consent of the holder thereof, modify
or amend each Option;
(viii) to accelerate or defer (with the consent of the Optionee) the
exercise date of any Option;
(ix) to authorize any person to execute on behalf of the Company any
instrument required to effect the grant of an Option previously granted by
the Board; and
(x) to make all other determinations deemed necessary or advisable for the
administration of the Plan.
(c) Effect of Board's Decision. All decisions, determinations and
interpretations of the Board shall be final and binding on all Optionees and
any other holders of any Options granted under the Plan. No member or former
member of the Committee or of the Board shall be liable for any action or
determination made in good faith with respect to the Plan or any Incentive
Stock Option granted hereunder.
5. Eligibility. Incentive Stock Options may be granted only to Employees
who have executed and delivered to the Company or a Subsidiary or Parent a
Confidentiality and Non-Competition Agreement, the terms of which shall be
determined by the Board. An Employee who has been granted an Option may, if he
is otherwise eligible, be granted an additional Option or Options.
No Incentive Stock Option may be granted to an Employee if, as the result of
such grant, the aggregate fair market value (determined as of the time each
option was granted) of the Shares for which such Optionee has been granted
incentive stock options during the calendar year under all incentive stock
option plans of the Company, and any Parent and Subsidiary would exceed
$100,000 plus any unused limited carry-over from each
BPHPA1\MMR\0072939.WP
08/14/94 4.
<PAGE> 6
of the three immediately preceding calendar years. For purposes of this
provision, "unused limit carry-over" means one-half of the excess, if any, of
$100,000 over the aggregate fair market value (determined as of the time the
option was granted) of the stock for which the Optionee was granted incentive
stock options under all incentive stock option plans of the Company or any
Parent or Subsidiary in the calendar year.
No Incentive Stock Option shall be granted to any person who, at the time
such Incentive Stock Option is granted, owns stock of the Company or any
Subsidiary or Parent possessing more than ten percent (10%) of the total
combined voting power of all classes of stock of the Company or of any
Subsidiary or Parent, unless (i) the exercise price per share is not less than
one hundred and ten percent (110%) of the fair market value per share on the
date such Incentive Option is granted and (ii) such Incentive Stock Option by
its terms is not exercisable after the expiration of five (5) years from the
date such Incentive Stock Option is granted. In determining stock ownership of
an employee, the rules of Section 425(d) of the Internal Revenue Code of 1986,
as amended, shall be applied, and the Board may rely on representations of fact
made to it by the employee and believed by it to be true.
The Plan shall not confer upon any Optionee any right with respect to
continuation of employment with the Company or any Subsidiary or Parent, nor
shall it interfere in any way with any rights of the Employee or the Company or
any Subsidiary or Parent to terminate employment at any time.
6. Term of Plan. The Plan shall become effective upon the earlier to occur
of its adoption by the Board of Directors or its approval by vote of the
holders of a majority of the outstanding shares of the Company entitled to vote
on the adoption of the Plan. It shall continue in effect for a term of ten
(10) years unless sooner terminated under Section 13 of the Plan.
7. Term of Option. The term of each Option shall be ten (10) years from
the date of grant thereof or such shorter term as may be provided in the Stock
Option Agreement.
8. Exercise Price and Consideration.
(a) The per Share exercise price for the Shares to be issued pursuant to
exercise of an Option shall be such price as is determined by the Board, but
shall be no less than 100% of the fair market value per Share on the date of
grant or as provided in Section 5 of the Plan.
(b) The fair market value shall be determined by the Board in its
discretion; provided, however, that where there is a public market for the
Common Stock, the fair market value per Share shall be as reported by the
National Association of Securities Dealers Automated Quotation System (NASDAQ)
or, in the event the Common
BPHPA1\MMR\0072939.WP
08/14/94 5.
<PAGE> 7
Stock is listed on a stock exchange, the fair market value per Share shall be
the closing price on such exchange on the date of grant of the Option, as
reported in the Wall Street Journal or the mean of the representative bid and
asked prices of the Common Stock for the date of grant, as reported in the
"pink sheets" published by the National Quotation Bureau, Inc.
(c) The consideration to be paid for the Shares to be issued upon exercise
of an Option, including the method of payment, shall be determined by the Board
and may consist entirely of cash, check, promissory note, other Shares of
Common Stock having a fair market value on the date of surrender equal to the
aggregate exercise price of the Shares as to which said option shall be
exercised, or any combination of such methods of payment, or such other
consideration and method of payment for the issuance of Shares to the extent
permitted under law. In making its determination as to the type of
consideration to accept, the Board shall consider if, under the parameters of
the Plan, acceptance of such consideration is reasonably expected to benefit
the Company.
9. Exercise of Option.
(a) Procedure for Exercise; Rights of a Shareholder. Any Option granted
hereunder shall be exercisable at such times and under such conditions as
determined by the Board, including performance criteria with respect to the
Company and/or the Optionee, and as shall be permissible under the terms of the
Plan, provided, however, that an Incentive Stock Option shall not be
exercisable while there is outstanding any Incentive Stock Option which was
granted, before the granting of such Incentive Stock Option, to the same
Optionee to purchase stock of the Company, and Parent, Subsidiary, or any
predecessor corporation of such corporations. For purposes of this provision,
an incentive stock option shall be treated as outstanding until such option is
exercised in full or expires by reason of lapse of time.
An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such
exercise has been given to the Company in accordance with the terms of the
Option by the person entitled to exercise the Option and full payment for
Shares with respect to which the Option is exercised has been received by the
Company. Full payment may, as authorized by the Board, consist of any
consideration and method of payment allowable under Section 8(c) of the Plan.
Until the issuance (as evidenced by the appropriate entry on the books of the
Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, no right to vote or receive dividends or
any other rights as a shareholder shall exist with respect to the Optioned
Stock, notwithstanding the exercise of the Option. No adjustment will be made
for a dividend or other right for which the record date is prior to the date
the stock certificate is issued, except as provided in Section 11 of the Plan.
BPHPA1\MMR\0072939.WP
08/14/94 6.
<PAGE> 8
Exercise of an Option in any manner shall result in a decrease in the number
of shares which thereafter may be available, both for purposes of the Plan and
for sale under the Option, by the number of Shares as to which the Option is
exercised.
(b) Termination of Status as an Employee. If an Employee ceases to serve
as an Employee upon retirement, voluntary termination not in anticipation of
discharge for cause, or discharge other than for cause (as defined below), he
may, but only within thirty (30) days (or such other period of time not
exceeding three (3) months as is determined by the Board and specified in the
Option itself) after the date he ceases to be an Employee of the Company or
Parent or Subsidiary, exercise his Option to the extent that he was entitled to
exercise it at the date of such termination. To the extent that he was not
entitled to exercise the Option at the date of such termination, or if he does
not exercise such Option (which he was entitled to exercise) within the time
specified herein, the Option shall terminate.
If an Employee voluntarily terminates his employment and the Board
determines in its reasonable discretion that the termination was in
anticipation of being discharged for cause, or if an Employee is discharged for
cause, any Incentive Stock Option granted hereunder shall, unless otherwise
specified by the Board in the Incentive Stock Option, forthwith terminate with
respect to any unexercised portion thereof.
For the purposes of the Plan, the term "for cause" (i) with respect to an
employee who is a party to a written agreement with, or, alternatively,
participates in a compensation or benefit plan of, the Company or a Subsidiary
or Parent, which agreement or plan contains a definition of "for cause" or
"cause" (or words of like import) for purposes of termination of employment
thereunder by the Company or such Subsidiary or Parent shall mean "for cause"
or "cause" as defined therein; or (ii) in all other cases, shall be determined
by the Board in its sole discretion, and shall include without limitation (a)
the willful commission by an employee of an act that causes or is intended to
cause substantial damage to the Company or a Subsidiary or Parent; (b) the
commission by an employee of an act of fraud in the performance of such
employee's duties on behalf of the Company or a Subsidiary or Parent; (c)
conviction of the employee for commission of a crime in connection with the
performance of the duties of such employee on behalf of the Company or a
Subsidiary or Parent; or (d) the failure of an employee to perform the duties
of such employee to the Company or a Subsidiary or Parent after written notice
thereof and a reasonable opportunity to cure such failure are given to the
employee by the Board or the Committee.
(c) Disability. In the event an Employee is unable to continue his
employment with the Company as a result of his total and permanent disability
(as defined in Section 105(d)(4) of the Internal Revenue Code), he may, but
only within twelve (12) months (or such other period of time not exceeding
twelve (12) months as is determined by the Board) from the date of termination,
exercise his Option to the extent he was entitled to exercise it at the date of
such termination. To the extent that he was not entitled to
BPHPA1\MMR\0072939.WP
08/14/94 7.
<PAGE> 9
exercise the Option at the date of termination, or if he does not exercise such
Option (which he was entitled to exercise) within the time specified herein,
the Option shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
(i) during the term of the Option who is at the time of his death an
Employee and who shall have been in Continuous Status as an Employee since
the date of grant of the Option, the Option may be exercised, at any time
within twelve (12) months following the date of death, by the Optionee's
estate or by a person who acquired the right to exercise the Option by
bequest or inheritance, but only to the extent of the right to exercise that
would have accrued had the Optionee continued living and remained in
Continuous Status as an Employee twelve (12) months after the date of death;
or
(ii) the Option may be exercised, at any time within twelve (12) months
following the date of death, if such death was thirty (30) days (or such
other period of time not exceeding three (3) months as is determined by the
Board and specified in the Option itself) after the termination of
Continuous Status as an Employee, by the Optionee's estate or by a person
who acquired the right to exercise the Option by bequest or inheritance, but
only to the extent of the right to exercise that had accrued at the date of
termination.
10. Non-transferability of Options. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or the laws of descent or distribution or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986, as amended, or
Title I of the Employee Retirement Income Security Act, or the rules
thereunder; and the Option may be exercised, during the lifetime of the
Optionee, only by the Optionee.
11. Adjustments Upon Changes in Capitalization or Merger. Subject to any
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split or the payment of a stock dividend with
respect to the Common Stock or any other increase or decrease in the number of
issued shares of Common Stock effected without receipt of consideration by the
Company; provided, however, the conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final,
BPHPA1\MMR\0072939.WP
08/14/94 8.
<PAGE> 10
binding and conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class, or securities convertible into
shares of stock of any class, shall affect, and no adjustment by reason thereof
shall be made with respect to, the number or price of shares of Common Stock
subject to an Option.
In the event of the proposed dissolution or liquidation of the Company, the
Option shall terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Board. The Board, in the exercise of
its sole discretion in such instances, may declare that any Option shall
terminate as of a date fixed by the Board and give each Optionee the right to
exercise Shares as to which the Option would not otherwise be exercisable. In
the event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, the
Option shall be assumed or an equivalent option shall be substituted by such
successor corporation or a parent or subsidiary of such successor corporation,
unless the Board determines, in the exercise of its sole discretion and in lieu
of such assumption or substitution, that the Optionee shall have the right to
exercise the Option as to all of the Optioned Stock, including Shares as to
which the Option would not otherwise be exercisable. If the Board makes an
Option fully exercisable in lieu of assumption or substitution in the event of
a merger or sale of assets, then the Board shall notify the Optionee that the
Option shall be fully exercisable for a period of thirty (30) days from the
date of such notice, and the Option shall terminate upon the expiration of such
period.
12. Time of Granting Options. The date of grant of an Option shall, for
all purposes, be the date on which the Board makes the determination granting
such Option. Notice of the determination shall be given to each Employee to
whom an Option is so granted within a reasonable time after the date of such
grant.
13. Amendment and Termination of the Plan.
(a) Amendment and Termination. The Board may amend or terminate the Plan
from time to time in such respects as the Board may deem advisable; provided
that, the following revisions or amendments shall require approval of the
holders of a majority of the outstanding shares of the Company entitled to
vote:
(i) any increase in the number of Shares subject to the Plan, other than
in connection with an adjustment under Section 11 of the Plan;
(ii) any change in the designation of the class of employees eligible
to be granted Options; or
(iii) if the Company has a class of equity security registered under
Section 12 of the Exchange Act at the time of such revision or amendment,
any material increase in the benefits accruing to participants under the Plan.
BPHPA1\MMR\0072939.WP
08/14/94 9.
<PAGE> 11
(b) Shareholder Approval. If any amendment requiring shareholder approval
under Section 13(a) of the Plan is made subsequent to the first registration of
any class of equity security by the Company under Section 12 of the Exchange
Act, such shareholder approval shall be solicited as described in Section 17(a)
of the Plan.
(c) Effect of Amendment or Termination. Any such amendment or termination
of the Plan shall not affect Options already granted and such Options shall
remain in full force and effect as if this Plan had not been amended or
terminated, unless mutually agreed otherwise between the Optionee and the
Board, which agreement must be in writing and signed by the Optionee and the
Company.
14. Conditions Upon Issuance of Shares. Shares shall not be issued
pursuant to the exercise of an Option unless the exercise of such Option and
the issuance and delivery of such Shares pursuant thereto shall comply with all
relevant provisions of law, including, without limitation, the Securities Act
of 1933, as amended, the Exchange Act, the rules and regulations promulgated
thereunder, all applicable state blue sky laws, and the requirement of any
stock exchange upon which the Shares may then be listed, and shall be further
subject to the approval of counsel for the Company with respect to such
compliance.
As a condition to the exercise of an Option, the Company may require the
person exercising such Option to represent and warrant at the time of any such
exercise that the Shares are being purchased only for investment and without
any present intention to sell or distribute such Shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned relevant provisions of law.
15. Reservation of Shares. The Company, during the terms of this Plan,
will at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
Inability of the Company to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company's counsel to be
necessary to the lawful issuance and sale of any Shares hereunder, shall
relieve the Company of any liability in respect of the failure to issue or sell
such Shares as to which such requisite authority shall not have been obtained.
16. Option Agreement. Options shall be evidenced by written option
agreements in such form as the Board shall approve.
17. Shareholder Approval. Continuance of the Plan shall be subject to
approval by the shareholders of the Company within twelve months before or
after the date the Plan is adopted. If such shareholder approval is obtained
at a duly held shareholders' meeting, it may be obtained by the affirmative
vote of the holders of a majority of the outstanding shares of the Company
present or represented and entitled to vote thereon. If
BPHPA1\MMR\0072939.WP
08/14/94 10.
<PAGE> 12
and in the event that the Company registers any class of any equity security
pursuant to Section 12 of the Exchange Act, the approval of such shareholders
of the Company shall be:
(a) (i) solicited substantially in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder, or (ii)
solicited after the Company has furnished in writing to the holders entitled to
vote substantially the same information concerning the Plan as that which would
be required by the rules and regulations in effect under Section 14(a) of the
Exchange Act at the time such information is furnished; and
(b) obtained at or prior to the first annual meeting of shareholders held
subsequent to the first registration of any class of equity securities of the
Company under Section 12 of the Exchange.
If such shareholder approval is obtained by written consent, it must be
obtained by the unanimous written consent of all shareholders of the Company.
18. Plan Adoption. This Plan shall be adopted and become effective upon
its ratification by the Board of Directors.
19. Withholding Taxes. The Company may require an Employee disposing of
Shares acquired pursuant to the exercise of an Incentive Stock Option in a
disqualifying disposition (within the meaning of Section 421(b) of the Code),
to reimburse the company that employs such Employee for any taxes required by
any government to be withheld or otherwise deducted and paid by the company in
respect of the issuance or disposition of Shares. In lieu thereof, the company
that employs such Employee shall have the right to withhold the amount of such
taxes from any other sums due or to become due from such company to the
Employee upon such terms and conditions as the Board shall prescribe.
20. Governing Law. The Plan and such Incentive Options as may be granted
thereunder and all related matters shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
21. Partial Invalidity. The invalidity or illegality of any provision
herein shall not be deemed to affect the validity of any other provision.
BPHPA1\MMR\0072939.WP
08/14/94 11.
<PAGE> 1
EXHIBIT 99.7
Clinical Home Care Ltd. 1990 Non-Qualified Stock Option Plan.
<PAGE> 2
EXHIBIT 99.7
CLINICAL HOMECARE LTD.
1990 STOCK OPTION PLAN
(NON-QUALIFIED)
1. Purposes of the Plan.
This Plan is intended to advance the interests of the Company by providing
its Key Employees and Independent Contractors and the Key Employees and
Independent Contractors of any Subsidiary of the Company now existing or
hereafter formed or acquired with additional incentive for them to promote the
success of the business, to increase their proprietary interest in the success
of the Company and to encourage them to remain with the Company. The Company,
by means of the Plan, also seeks to attract the services of persons capable of
filling such key positions. The Plan seeks to accomplish these purposes and
results by providing a means whereby Key Employees and Independent Contractors
may purchase Shares of the Common Stock of the Company pursuant to
non-statutory stock options described in Section 1.83-7 of the Treasury
Regulations.
2. Definitions.
As used herein, the following definitions shall apply:
2.1 "Board" shall mean the Board of Directors of the Company.
2.2 "Code" shall mean the Internal Revenue Code of 1986, as amended.
2.3 "Common Stock" shall mean the common stock, par value $.01 per share,
of the Company.
2.4 "Company" shall mean Clinical Homecare Ltd., a Delaware corporation.
2.5 "Committee" shall mean the Committee appointed by the Board in
accordance with Section 4.1 of the Plan, if one is appointed. If a Committee
has not been appointed, such term shall include the Board when acting in its
administrative capacity with respect to the Plan.
2.6 "Continuous Employment" or "Continuous Status as an Employee" shall
mean the absence of any interruption or termination of employment by the
Company or any Subsidiary of the Company. Continuous Employment shall not be
considered interrupted in the case of sick leave, military leave or any other
leave of absence approved by the Board or in the case of transfers between the
Company and any Subsidiary of the Company.
BPHPA1\MMR\0072938.WP
08/13/94
<PAGE> 3
2.7 "Key Employee" shall mean any person, including without limitation,
any officer or director of the Company or any Subsidiary of the Company;
provided, however, no director shall be considered a "Key Employee," solely as
a result of such director receiving fees for serving on the Board of the
Company or any Subsidiary of the Company.
2.8 "Key Independent Contractor" shall mean any person, including without
limitation, a partnership or corporation, that performs services for the
Company or any Subsidiary of the Company and is not a Key Employee.
2.9 "Option" shall mean a right to purchase Shares, granted pursuant to
the Plan.
2.10 "Optionee" shall mean any Key Employee or Independent Contractor of
the Company or any Subsidiary of the Company, to whom an Option is granted
under the Plan.
2.11 "Plan" shall mean this Clinical Homecare Ltd. Stock Option Plan, which
is not intended to be a qualified incentive stock option plan within the
meaning of Section 422A of the Internal Revenue Code of 1986, as amended.
2.12 "Securities Act" shall mean the Securities Act of 1933, as amended.
2.13 "Share" shall mean the Common Stock of the Company, as adjusted in
accordance with Section 15 of the Plan.
2.14 "Subsidiary" shall mean any corporation in an unbroken chain of
corporations beginning with the Company if, at the time of the granting of the
Option, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
3. Stock Subject to the Plan.
Subject to the adjustments provided in Section 15 of the Plan, the total
number of Shares which may be delivered upon exercise of all Options granted
under the Plan shall not exceed, in the aggregate, One Million Six Hundred
Seventy-Four Thousand Three Hundred Eighteen (1,674,318) Shares. The Shares
may be authorized, but unissued or reacquired Common Stock. If an Option
should expire or become unexercisable for any reason without having been
exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for other Options
under the Plan.
BPHPA1\MMR\0072938.WP
08/13/94 - 2 -
<PAGE> 4
4. Administration of the Plan.
4.1 Procedure. The Plan shall be administered by the Board or by a
Committee consisting of three (3) or more persons who from time to time may be
selected by the Board. A majority of the members of the Committee shall
constitute a quorum, and the act of a majority of the members of the Committee
shall be the act of the Committee. Any action may be taken by a written
instrument signed by all the members of the Committee, and action so taken
shall be fully as effective as if it had been taken by a unanimous vote of the
members at a meeting duly called and held. The Plan shall be administered on
behalf of the Board, subject to such terms and conditions as the Board may
prescribe. If appointed, the Committee shall continue to serve until otherwise
directed by the Board. From time to time the Board may increase the size of
the Committee and appoint additional members thereof, remove members (with or
without cause) and appoint new members in substitution therefor, fill
vacancies, however caused, and remove all members of the Committee and
thereafter directly administer the Plan; provided, however, that at no time
shall a Committee of fewer than three (3) members administer the Plan.
4.2 Powers of the Committee. Subject to the provisions of the Plan, the
Committee shall have the authority, in its discretion: (i) to determine, upon
review of relevant information and in accordance with Section 8 of the Plan,
the fair market value of the Common Stock; (ii) to determine the exercise price
per Share for Options to be granted; (iii) to determine the Key Employees
and/or Independent Contractors to whom Options shall be granted, the time or
times at which said Options shall be granted and the number of Shares to be
represented by each Option; (iv) to construe and interpret the Plan; (v) to
determine the duration and purposes of absences which will not constitute a
termination or interruption of employment for purposes of the Plan; (vi) to
prescribe, amend and rescind rules and regulations relating to the
administration of the Plan; (vii) to determine the terms and provisions of each
Option (which need not be identical) and, with the consent of the holder
thereof, modify or amend each Option; (viii) to determine the terms and
conditions of the exercise of each Option and the issuance of Shares; (ix) to
accelerate the exercise date of any Option; (x) to authorize any person to
execute on behalf of the Company any instrument required to effect the grant of
an Option previously granted by the Committee; and (xi) to make all other
determinations deemed necessary or advisable for the administration of the
Plan.
4.3 Effect of Committee's Decision. All decisions, determinations or
interpretations of the Committee shall be final, conclusive and binding on all
Optionees.
5. Eligibility; Replacement Options.
5.1 Subject to the discretion of the Committee with respect to the
particular individuals selected as provided in Section 4.2 hereof, all Key
Employees and Independent Contractors who have been employed or retained for at
least one year prior to the time an Option is granted by the Company or any
Subsidiary of the Company, or by
BPHPA1\MMR\0072938.WP
08/13/94 - 3 -
<PAGE> 5
any entity which has been acquired by or merged into the Company or any
Subsidiary of the Company, shall be eligible for selection to receive Options.
In determining the Key Employees or Independent Contractors to whom Options
shall be granted and the number of Shares for which Options shall be granted to
a Key Employee or Independent Contractor, the Committee shall consider the
length of service, the amount of earnings, and the responsibilities and duties
of such Key Employee or Independent Contractor. A Key Employee or Independent
Contractor who has been granted an Option may, if said person is otherwise
eligible, be granted an additional Option or Options.
5.2 Immediately after the Plan shall become effective as set forth in
Section 6 below, Options shall be granted in substitution for Options which
were granted by Clinical Homecare Corporation, a New Jersey corporation,
pursuant to its 1986 Stock Option Plan. The Committee shall make appropriate
adjustments as to the number of Options to be granted and the terms of exercise
in connection with the issuance of such replacement Options as shall be
equitable to prevent dilution or enlargement of rights under Options, and the
determination of the Committee as to these matters shall be final, conclusive
and binding on the recipients of those Options.
6. Term of Plan. The Plan shall become effective upon its adoption by the
Board or its approval by holders of a majority of the outstanding shares of the
Company entitled to vote on the adoption of the Plan, whichever is earlier. It
shall continue in effect for a term of ten (10) years unless sooner terminated
under Section 16 of the Plan.
7. Option Period. Each Option and all rights or obligations thereunder
shall expire on such date as the Board or the Committee, if authorized, may
determine and as set forth in the individual stock option agreements, but in no
event may any Option expire later than five (5) years after the date such
Option is granted and each Option shall be subject to earlier termination as
provided elsewhere in the Plan.
8. Option Price and Consideration.
8.1 The Option price for each Share to be issued pursuant to an Option
shall be as determined by the Committee, but, in any event, shall not be less
than the fair market value per Share of Common Stock at the time such Option is
granted or the price established by the Committee for replacement Options
pursuant to Section 5.2 hereof. The fair market value shall be determined in
accordance with any reasonable valuation method, which may include the
valuation methods described in Treasury Regulation Section 20.2031-2; provided,
however, that where there is a public market for the Common Stock, the fair
market value per Share shall be the mean of the reported bid and asked prices
for the Common Stock as of the date of grant, or, in the event the Common Stock
is listed on a stock exchange, the fair market value per Share shall be the
closing price on the exchange as of the date of grant of the Option.
BPHPA1\MMR\0072938.WP
08/13/94 - 4 -
<PAGE> 6
8.2 The consideration to be paid for the Shares to be issued upon exercise
of an Option, including the method of payment, shall be determined by the
Committee. Such consideration may consist of cash, certified or bank check,
other Shares of Common Stock, or such other consideration and method of payment
for the issuance of Shares to the extent permitted under General Corporation
Law of Delaware.
9. Time of Granting Options. The date of grant of an Option, for all
purposes, shall be the date on which the Committee takes action as described in
Section 4 hereof. Notice of the determination shall be given to each Key
Employee or Independent Contractor to whom an Option is granted within a
reasonable time after the date of such grant. If action by the Committee is
taken by the unanimous written consent of its members, the date of the action
of the Committee shall be the date set forth in said unanimous consent.
10. Conditions of Grant of Option. Options shall not be issued to an
Optionee unless the Optionee executes and delivers to the Company a
Confidentiality and Non-Competition Agreement, the terms and conditions of
which shall be determined by the Committee.
11. Exercise of Option.
11.1 Procedure for Exercise; Rights as a Shareholder.
11.1.1 Any Option granted hereunder shall be exercisable at such times and
under such conditions as the Committee shall determine and as shall be
permissible under the terms of the Plan. If an Optionee shall not purchase all
of the Shares which such Optionee is entitled to purchase, such Optionee's
right to purchase any unpurchased Shares shall continue until expiration of
such Option or such other time as may apply to any such Shares pursuant to the
terms of the Option. An Option may be exercised only by the Optionee and may,
at the discretion of the Committee, be exercised for a fraction of a Share.
11.1.2 Options may be exercised, prior to their expiration as set forth
herein, upon ten (10) days written notice delivered by the Optionee to the
Company in accordance with the terms of the Option stating the number of Shares
with respect to which the Option is being exercised, together with full payment
for the Shares. Until the issuance (as evidenced by the appropriate entry on
the books of the Company or of a duly authorized transfer agent of the Company)
of the stock certificate evidencing such Shares, no right to receive dividends
or any other rights as a stockholder shall exist with respect to the Shares,
notwithstanding the exercise of the Option and, upon issuance, said Shares
shall be subject to the restrictions set forth in Section 12 hereof. No
adjustment will be made for a dividend or other right for which the record date
is prior to the date the stock certificate is issued, except as provided in
Section 15 of the Plan. Exercise of an Option in any manner shall result in a
decrease in the number of Shares which thereafter may be available, both
BPHPA1\MMR\0072938.WP
08/13/94 - 5 -
<PAGE> 7
for purposes of the Plan and for sale under the Option, by the number of Shares
as to which the Option is exercised.
12. Restrictions on Options and Shares.
12.1 Options.
12.1.1 The Options granted pursuant to this Plan may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner.
12.1.2 Upon the termination of employment of any Optionee with the Company
or any Subsidiary of the Company, for any reason other than death or disability,
any Option previously granted to the Optionee, unless otherwise specified by
the Board or the Committee, as the case may be, to the extent not theretofore
exercised, shall terminate and become null and void.
12.1.3 Each outstanding Option granted hereunder shall expire upon the
occurrence of any of the following events ("Terminating Event"):
A. The sale or exchange of all or substantially all of the issued and
outstanding Common Stock of the Company;
B. The sale of all or substantially all of the Company's assets;
C. Dissolution of the Company;
D. Any merger or combination involving the Company in which the Company
is not a surviving corporation.
12.1.4 The Committee shall notify each Optionee of the pendency of any
Terminating Event not later than thirty (30) days prior to the effective date
of the Terminating Event. Upon the giving of said notice, any Option granted
prior to a Terminating Event shall be exercisable in full, subject, however, to
earlier expiration or termination as provided elsewhere in the Plan. Upon the
date thirty (30) days after the giving of said notice, any Option or portion
thereof not exercised shall terminate, and upon the effective date of the
Terminating Event, the Plan shall terminate, unless provision is made in
connection with the Terminating Event for assumption of Options theretofore
granted, or substitution for such Options of new options covering stock of a
successor corporation, or a parent or subsidiary corporation thereof, with
appropriate adjustments as to number and kind of shares and prices.
BPHPA1\MMR\0072938.WP
08/13/94 - 6 -
<PAGE> 8
12.2 Shares.
12.2.1 The Shares issued pursuant to any Option may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner so long as the
certificate evidencing such Shares bears the legends set forth in Section
12.2.3, except as specifically provided in this Section 12.
12.2.2 Upon any exercise of an Option pursuant to Section 11 hereof and
payment of the purchase price, a stock certificate or certificates evidencing
such Shares shall be issued by the Company in the sole name of the Optionee and
shall be delivered to him or her, as the case may be.
12.2.3 The Company may endorse such legends upon the certificates for Shares
issued upon exercise of an Option granted hereunder, and the Committee may
issue such "stop transfer" instructions to its transfer agent in respect of
such Shares, as the Committee, in its discretion, determines to be necessary or
appropriate to (i) implement the provisions of the Plan and any agreement
between the Company and the Optionee with respect to such Shares, or (ii)
prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act. Such legends, if required, shall be
substantially in the form set forth below:
"The sale, assignment, transfer, pledge, encumbrance, or other disposition
of the shares evidenced by this certificate, or any interest in such shares,
is restricted by the terms of the Clinical Homecare Ltd. Stock Option Plan,
a copy of which is on file at the principal office of the company."
"The securities represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of 1933, as
amended, or under the securities laws of any state. These securities may
not be sold or transferred in the absence of an effective registration
statement for the securities under the Securities Act or such laws or an
exemption therefrom."
12.2.4 Upon the issuance of Shares to an Optionee pursuant to Section 11
hereof and the payment of the purchase price, the Optionee shall have all the
rights of a shareholder with respect to such Shares, with the exception of the
right to vote the Shares.
12.2.5 So long as the restrictions of this Section 12 are in effect, upon
termination of employment of the Optionee with the Company and any Subsidiary
of the Company, for any reason other than death or disability, all Shares held
by the Optionee shall be sold by the Optionee and repurchased by the Company
for the book value of each such Share calculated as of the last day of the
fiscal quarter preceding such date of
BPHPA1\MMR\0072938.WP
08/13/94 - 7 -
<PAGE> 9
termination, and the Optionee shall forthwith surrender and deliver to the
Company the certificates evidencing such Shares duly endorsed in blank for
transfer.
12.2.6 All restrictions to which the Shares are subject pursuant to this
Section 12 shall lapse upon the occurrence of any one of the following events:
A. The filing of a registration statement under the Securities Act with
the Securities and Exchange Commission covering a public offering of the
Shares;
B. The sale or exchange of all or substantially all of the issued and
outstanding Common Stock of the Company;
C. The sale of all or substantially all of the Company's assets;
D. Dissolution of the Company.
13. Death of Optionee.
Upon the death of an Optionee (the "Decedent"), all Options and Shares owned
by the Decedent pursuant to the exercise of Options to which he or his personal
representatives shall be entitled, shall be subject to disposition as provided
in this Section 13.
13.1 Options. A Decedent's Options shall expire on the earlier of the date
of expiration or termination as set forth in the Options or the date one (1)
year after the Decedent's date of death. Prior to such date of expiration or
termination, the persons to whom the Decedent's rights under any Options shall
have passed by will or by the applicable laws of descent and distribution shall
have the right to exercise such Options in accordance with the terms therein,
to the extent that such Options were exercisable at the Decedent's date of
death.
13.2 Shares. Shares owned by the Decedent at the Decedent's date of death
together with the Shares obtained pursuant to Section 13.1 hereof shall be sold
by the holder thereof and purchased by the Company for the book value of each
such share calculated as of the last day of the fiscal quarter preceding the
date of death or acquisition.
13.3 Restrictions. All restrictions to which the Shares are subject
pursuant to this Section 13 shall lapse upon the occurrence of any one of the
following events:
A. The filing of a registration statement under the Securities Act with
the Securities and Exchange Commission covering a public offering of the
Shares;
BPHPA1\MMR\0072938.WP
08/13/94 - 8 -
<PAGE> 10
B. The sale or exchange of all or substantially all of the issued and
outstanding Common Stock of the Company;
C. The sale of all or substantially all of the Company's assets;
D. Dissolution of the Company.
14. Disability of Optionee.
Upon an Optionee ceasing to be employed by the Company and any Subsidiary of
the Company, by reason of disability (within the meaning of Section 22(e)(3) of
the Code) (the "Disabled Optionee"), any Options and Shares owned by the
Disabled Optionee pursuant to the exercise of Options shall be subject to
disposition as provided in this Section 14.
14.1 Options. Such Options shall expire on the earlier of the date of
expiration or termination as set forth in the Options or the date one (1) year
after the date the Disabled Optionee becomes disabled. Prior to such date of
expiration or termination the Disabled Optionee shall have the right to
exercise such Options in accordance with the terms therein, to the extent that
such Options were exercisable at the date the Disabled Optionee became
disabled.
14.2 Shares. The Shares owned by the Disabled Optionee, whether acquired
prior or subsequent to the date the Disabled Optionee became disabled, shall be
held by the Disabled Optionee subject to the terms, conditions and restrictions
contained herein.
15. Adjustments Upon Changes in Capitalization.
15.1 Subject to any required action by the shareholders of the Company, the
number of Shares covered by each outstanding Option and the number of Shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted (collectively, the "Reserves"), as well
as the price per Share of Common Stock covered by each outstanding Option,
shall be proportionately adjusted if the outstanding Shares of Common Stock of
the Company are increased, decreased, changed into or exchanged for a different
number or kind of Shares of Common Stock without the receipt of consideration
by the Company, resulting from a reorganization, merger, recapitalization,
reclassification, stock-split or stock dividend (but only on the Common Stock)
or any other increase or decrease in the number of Shares of Common Stock
effected without the receipt of consideration by the Company; provided,
however, that conversion of any convertible securities of the Company shall not
be deemed to have been "effected without the receipt of consideration." Any
such adjustment in an outstanding Option shall be made without change in the
total price applicable to the unexercised portion of the Option but with a
corresponding adjustment in the price for each Share subject to the Option.
Such adjustment shall be made by the Committee, whose determination in that
BPHPA1\MMR\0072938.WP
08/13/94 - 9 -
<PAGE> 11
respect shall be final, binding and conclusive. At the discretion of the
Committee, fractional shares of Common Stock may be issued under the Plan on
account of any such adjustment.
15.2 Except as expressly provided herein, no issue by the Company of shares
of stock of any class, or securities convertible into shares of stock of any
class, shall affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Shares of Common Stock subject to an Option.
The Board, if it so determines, in its sole discretion, may also make
provisions for adjusting the Reserves, as well as the price per Share of Common
Stock covered by each outstanding Option, in the event that the Company effects
one or more reorganizations, recapitalizations, rights offerings or other
increases or reductions of Shares of its outstanding Common Stock, or in the
event the Company is consolidated with or merged into any other corporation.
16. Amendment and Termination of the Plan.
16.1 Amendment and Termination. The Board may from time to time suspend,
amend or terminate the Plan in such respects as the Board may deem advisable,
except that, the approval of the holders of a majority of the outstanding
Shares of the Company entitled to vote shall be required in the event that such
revision or amendment shall:
16.1.1 Materially increase the number of Shares subject to the Plan other
than in connection with an adjustment under Section 15 of the Plan;
16.1.2 Materially change the designation of the class of Key Employees or
Independent Contractors eligible to be granted Options;
16.1.3 Remove the administration of the Plan from the Board or Committee; or
16.1.4 Materially increase the benefits accruing to participants under the
Plan.
16.2 Effect of Amendment or Termination. Any such amendment or termination
of the Plan shall not affect Options already granted and such Options shall
remain in full force and effect as if this Plan had not been amended or
terminated.
17. Conditions of Issuance of Shares.
17.1 Shares shall not be issued with respect to an Option unless the
exercise of such Option and the issuance and delivery of such Shares pursuant
thereto shall comply with all relevant provisions of law, including, without
limitation, the Securities Act, the Securities Exchange Act of 1934, as
amended, the rules and regulations promulgated thereunder, and the requirements
of any stock exchange upon which the Shares may then
BPHPA1\MMR\0072938.WP
08/13/94 - 10 -
<PAGE> 12
be listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
17.2 As a condition to the exercise of an Option, the Company may require
the Optionee to execute and deliver to the Company a written statement, in form
satisfactory to the Company, in which such Optionee represents and warrants
that such Optionee is purchasing or acquiring the Shares acquired thereunder
for such Optionee's own account, for investment only and not with a view to the
resale or distribution thereof, and agrees that any subsequent offer for sale
or sale of any such Shares shall be made only pursuant to either (i) a
registration statement on an appropriate form under the Securities Act, which
registration statement has become effective and is current with regard to the
Shares being offered or sold, or (ii) a specific exemption from the
registration requirements of the Securities Act, but in claiming such exemption
the holder shall, prior to any offer for sale or sale of such Shares, obtain a
prior favorable written opinion, in form and substance satisfactory to the
Company, from counsel for or approved by the Company, as to the application of
such exemption thereto. The foregoing restriction shall not apply to (a)
issuances by the Company so long as the Shares being issued are registered
under the Securities Act and a prospectus in respect thereof is current, or (b)
reofferings of Shares by affiliates of the Company (as defined in Rule 405 or
any successor rule or regulation promulgated under the Securities Act) if the
Shares being reoffered are registered under the Securities Act and a prospectus
in respect thereof is current.
18. Continuation of Employment or Performance of Services.
Nothing contained in the Plan or in any Option agreement shall obligate the
Company or any Subsidiary of the Company to employ any Optionee for any period
or interfere in any way with the right of the Company or any Subsidiary of the
Company to terminate any Optionee's employment or reduce such Optionee's
compensation.
19. Reservations of Shares.
The Company, during the term of this Plan, will at all times reserve and
keep available such number of Shares as shall be sufficient to satisfy the
requirements of the Plan. The inability of the Company to obtain authority
from any regulatory body having jurisdiction, which authority is deemed by the
Company's counsel to be necessary to the lawful issuance and sale of any Shares
hereunder, shall relieve the Company of any liability in respect of the
non-issuance or sale of such Shares as to which such requisite authority shall
not have been obtained.
20. Option Agreement.
Options shall be evidenced by written Option agreements in such form as the
Board or Committee, as the case may be, shall approve which shall contain in
part,
BPHPA1\MMR\0072938.WP
08/13/94 - 11 -
<PAGE> 13
restrictions upon the sale, transfer, pledge or encumbrance of the Shares to be
issued upon the exercise of an Option.
21. Other Compensation Plans.
The adoption of this Plan shall not affect any other stock option or
incentive or other compensation plans in effect for the Company or any
Subsidiary of the Company, nor shall the Plan preclude the Company or any
Subsidiary of the Company from establishing any other forms of incentive or
other compensation. This Plan replaces the 1986 Stock Option Plan of Clinical
Homecare Corporation, a New Jersey corporation, the Options and Shares in which
have been deemed cancelled prior to adoption of this Plan.
22. Listing of Shares and Related Matters.
If at any time the Board shall determine in its discretion that the listing,
registration or qualification of the Shares covered by the Plan upon any
national securities exchange or under any state or federal law, or the consent
or approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the sale or purchase of Shares under the
Plan, no Shares shall be delivered unless and until such listing, registration,
qualification, consent or approval shall have been effected or obtained, or
otherwise provided for, free of any conditions not acceptable to the Board.
23. Governing Law.
The Plan and such Options as may be granted thereunder and all related
matters shall be governed by, and construed and enforced in accordance with,
the laws of the State of Delaware.
24. Partial Invalidity.
The invalidity or illegality of any provision herein shall not be deemed to
affect the validity of any other provision.
BPHPA1\MMR\0072938.WP
08/13/94 - 12 -
<PAGE> 1
EXHIBIT 99.8
Form of Stock Option Assumption Agreement for Options issued pursuant
to the plans described in Exhibits 99.3 through 99.7.
<PAGE> 2
EXHIBIT 99.8
STOCK OPTION ASSUMPTION AGREEMENT
OPTIONEE: 1~,
NUMBER OF CURAFLEX SHARES: 2~
GRANT DATE: 3~
ORIGINAL EXERCISE PRICE PER SHARE:
WHEREAS, the undersigned Optionee was previously granted the stock option
described above (the "Option") to purchase shares of the common stock of
Curaflex Health Services, Inc. ("Curaflex ") pursuant to the Curaflex 1989 or
1990 Stock Option Plan (the "Plan").
WHEREAS, Curaflex has become a wholly-owned subsidiary of Coram Healthcare
Corporation, a Delaware corporation ("Coram"), pursuant to a merger transaction
effected July ___, 1994 (the "Merger") in accordance with the terms and
provisions of that certain Agreement and Plan of Merger dated as of February 6,
1994 and amended May 25, 1994 (the "Merger Agreement") by and among Coram,
Curaflex, T2 Medical, Inc., HealthInfusion, Inc., Medisys, Inc., Curaflex
Acquisition Company, T2 Acquisition Company, CHS Acquisition Company, HII
Acquisition Company and MI Acquisition Company.
WHEREAS, the Option was outstanding at the time of the Merger and eligible
for assumption by Coram in accordance with the provisions of the Plan and the
agreement evidencing the Option (the "Option Agreement").
WHEREAS, pursuant to Section 7.8 of the Merger Agreement, all options
outstanding under the Plan at the time of the Merger, including the Option,
were to be assumed by Coram and become options to purchase shares of Coram
common stock.
WHEREAS, pursuant to the provisions of the Merger Agreement, the exchange
ratio in effect for the Merger is 0.333 of a share of Coram common stock for
each outstanding share of Curaflex common stock (the "Exchange Rate").
WHEREAS, certain adjustments to the Option are necessary to reflect the
effect of the assumption of that Option by Coram in connection with the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. Coram hereby assumes all the duties and obligations of Curaflex under
the Option and hereby agrees to issue up to the number of shares of Coram
common stock
BPHPA1\SJD\0063816.02B
08/19/94
<PAGE> 3
indicated below upon (i) the exercise of that Option in accordance with the
provisions of the Option Agreement (as supplemented hereby) and (ii) the
payment of the adjusted exercise price per share set forth below.
<TABLE>
<CAPTION>
CURAFLEX CORAM
STOCK OPTION ASSUMED OPTION
------------ --------------
# of Shares # of Shares Adjusted
Curaflex Exercise Coram Exercise
Common Stock Price/Share Common Stock Price/Share
------------ ----------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
2. The number of shares of Coram common stock purchasable under the Option
hereby assumed (the "Assumed Option") and the exercise price per share payable
thereunder have been adjusted to reflect the Exchange Rate at which the
outstanding shares of Curaflex common stock have been converted into shares of
Coram common stock on the consummation of the Merger. The intent of such
adjustments is to assure that the spread between the aggregate fair market
value of the Coram shares purchasable under the Assumed Option and the
aggregate exercise price as adjusted hereunder payable for such shares will,
immediately after the Merger, substantially equal and not exceed the spread
which existed immediately prior to the Merger between the then aggregate fair
market value of Curaflex common stock subject to the Option and the aggregate
exercise price in effect at such time under the Option. Such adjustments are
also designed to preserve, on a per share basis immediately after the Merger,
the same ratio of fair market value per option share to exercise price per
share which existed under the Option immediately prior to the Merger.
3. All references to the "Company" in the Option Agreement shall be deemed
to include Coram, and all references to "Common Stock" shall be deemed to refer
to the shares of Coram common stock now subject to the Assumed Option. For
purposes of determining the holding period of any shares of Coram common stock
delivered in payment of the exercise price of the Assumed Option, the period
for which such shares were held as Curaflex common stock prior to the Merger
shall be taken into account.
4. The Assumed Option shall continue to have a maximum ten (10)-year term
measured from the original grant date of the Option, and all references to the
"Grant Date" in the Option Agreement shall continue to relate to that original
grant date. The Assumed Option, however, shall be subject to earlier
termination in accordance with the provisions of the Option Agreement should
the Optionee's service with Curaflex terminate. However, for all purposes of
the Option Agreement, the Optionee shall be deemed to
BPHPA1\SJD\0063816.02B
08/19/94 2.
<PAGE> 4
continue in service status for so long as such individual continues in the
employ of Curaflex, Coram or any other Coram subsidiary now or hereafter
existing.
5. The exercise/vesting schedule in effect for the shares of Coram common
stock issuable under the Assumed Option shall remain the same as in effect
under the Option immediately prior to the Merger. Accordingly, no acceleration
of vesting or exercisability shall be deemed to have occurred by reason of the
Merger.
6. In the event the Optionee's service with Curaflex is terminated for any
reason other than cause, disability, death or voluntary termination by the
Optionee within twelve (12) months after the effective date of the Merger, the
Assumed Option shall become fully exercisable for all the shares of Coram
common stock at the time subject to that option and may be exercised for any or
all of those shares at any time prior to the expiration date of the option term
or the sooner termination of the Option in accordance with the provisions of
the Option Agreement.
7. All notices to Curaflex required or permitted to be given to the
Curaflex pursuant to the provisions of the Option Agreement shall be given to
Coram at the following address:
______________________________
______________________________
______________________________
8. Except to the extent specifically modified by this Option Assumption
Agreement, all of the terms and conditions of the Option Agreement as in effect
immediately prior to the Merger shall continue in full force and effect and
shall not in any way be amended, revised or otherwise affected by this Option
Assumption Agreement.
IN WITNESS WHEREOF, Coram Healthcare Corporation has caused this Option
Assumption Agreement to be executed on its behalf by its duly- authorized
officer as of the ___ day of July 1994.
CORAM HEALTHCARE CORPORATION
By: _____________________________
_____________________________
Title: _____________________________
BPHPA1\SJD\0063816.02B
08/19/94 3.
<PAGE> 5
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to the Option as assumed by Coram Healthcare Corporation are as set
forth in the Option Agreement, the Plan and such Stock Option Assumption
Agreement.
______________________________
OPTIONEE
Dated: __________________, 1994
BPHPA1\SJD\0063816.02B
08/19/94 4.
<PAGE> 1
EXHIBIT 99.10
Form of Stock Option Assumption Agreement for Options issued to employees and
officers pursuant to the Medisys, Inc. 1989 Stock Option Plan.
<PAGE> 2
EXHIBIT 99.10
STOCK OPTION ASSUMPTION AGREEMENT
OPTIONEE: 1~,
NUMBER OF MEDISYS SHARES: 2~
GRANT DATE: 3~
ORIGINAL EXERCISE PRICE PER SHARE:
WHEREAS, the undersigned Optionee was previously granted the stock option
described above (the "Option") to purchase shares of the common stock of
Medisys, Inc. ("Medisys ") pursuant to the Medisys Stock Option Plan (the
"Plan").
WHEREAS, Medisys has become a wholly-owned subsidiary of Coram Healthcare
Corporation, a Delaware corporation ("Coram"), pursuant to a merger transaction
effected July ___, 1994 (the "Merger") in accordance with the terms and
provisions of that certain Agreement and Plan of Merger dated as of February 6,
1994 and amended May 25, 1994 (the "Merger Agreement") by and among Coram, T2
Medical, Inc., Curaflex Health Services, Inc. HealthInfusion, Inc., Medisys, T2
Acquisition Company, CHS Acquisition Company, HII Acquisition Company and MI
Acquisition Company.
WHEREAS, the Option was outstanding at the time of the Merger and eligible
for assumption by Coram in accordance with the provisions of the Plan and the
agreement evidencing the Option (the "Option Agreement").
WHEREAS, pursuant to Section 7.8 of the Merger Agreement, all options
outstanding under the Plan at the time of the Merger, including the Option,
were to be assumed by Coram and become options to purchase shares of Coram
common stock.
WHEREAS, pursuant to the provisions of the Merger Agreement, the exchange
ratio in effect for the Merger is 0.243 share of Coram common stock for each
outstanding share of Medisys common stock (the "Exchange Rate").
WHEREAS, certain adjustments to the Option are necessary to reflect the
effect of the assumption of that Option by Coram in connection with the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. Coram hereby assumes all the duties and obligations of Medisys under the
Option and hereby agrees to issue up to the number of shares of Coram common
stock indicated below upon (i) the exercise of that Option in accordance with
the provisions of the Option Agreement (as supplemented hereby) and (ii) the
payment of the adjusted exercise price per share set forth below.
BPHPA1\SJD\0063816.04B
08/19/94
<PAGE> 3
<TABLE>
<CAPTION>
MEDISYS CORAM
STOCK OPTION ASSUMED OPTION
------------ --------------
# of Shares # of Shares Adjusted
Medisys Exercise Coram Exercise
Common Stock Price/Share Common Stock Price/Share
------------ ----------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
2. The number of shares of Coram common stock purchasable under the Option
hereby assumed (the "Assumed Option") and the exercise price per share payable
thereunder have been adjusted to reflect the Exchange Rate at which the
outstanding shares of Medisys common stock have been converted into shares of
Coram common stock on the consummation of the Merger. The intent of such
adjustments is to assure that the spread between the aggregate fair market
value of the Coram shares purchasable under the Assumed Option and the
aggregate exercise price as adjusted hereunder payable for such shares will,
immediately after the Merger, substantially equal and not exceed the spread
which existed immediately prior to the Merger between the then aggregate fair
market value of Medisys common stock subject to the Option and the aggregate
exercise price in effect at such time under the Option. Such adjustments are
also designed to preserve, on a per share basis immediately after the Merger,
the same ratio of fair market value per option share to exercise price per
share which existed under the Option immediately prior to the Merger.
3. All references to the "Company" in the Option Agreement shall be deemed
to include Coram, and all references to "Common Stock" shall be deemed to refer
to the shares of Coram common stock now subject to the Assumed Option. For
purposes of determining the holding period of any shares of Coram common stock
delivered in payment of the exercise price of the Assumed Option, the period
for which such shares were held as Medisys common stock prior to the Merger
shall be taken into account.
4. The Assumed Option shall continue to have a maximum ten (10)-year term
measured from the original grant date of the Option, and all references to the
"Grant Date" in the Option Agreement shall continue to relate to that original
grant date. The Assumed Option, however, shall be subject to earlier
termination in accordance with the provisions of the Option Agreement should
the Optionee's service with Medisys terminate. However, for all purposes of
the Option Agreement, the Optionee shall be deemed to continue in service
status for so long as such individual continues in the employ of Medisys, Coram
or any other Coram subsidiary now or hereafter existing.
5. The Assumed Option shall be fully and immediately exercisable for all of
the shares of Coram common stock subject to the Option and may be exercised for
any or all of those shares at any time prior to the expiration date of the
option term or the
BPHPA1\SJD\0063816.04B
08/19/94 2.
<PAGE> 4
sooner termination of the Option in accordance with the provisions of the
Option Agreement.
6. All notices to Medisys required or permitted to be given to the Medisys
pursuant to the provisions of the Option Agreement shall be given to Coram at
the following address:
______________________________
______________________________
______________________________
7. Except to the extent specifically modified by this Option Assumption
Agreement, all of the terms and conditions of the Option Agreement as in effect
immediately prior to the Merger shall continue in full force and effect and
shall not in any way be amended, revised or otherwise affected by this Option
Assumption Agreement.
IN WITNESS WHEREOF, Coram Healthcare Corporation has caused this Option
Assumption Agreement to be executed on its behalf by its duly- authorized
officer as of the ___ day of July 1994.
CORAM HEALTHCARE CORPORATION
By: ________________________________
________________________________
Title: ________________________________
BPHPA1\SJD\0063816.04B
08/19/94 3.
<PAGE> 5
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to the Option as assumed by Coram Healthcare Corporation are as set
forth in the Option Agreement, the Plan and such Stock Option Assumption
Agreement.
____________________________________
OPTIONEE
Dated: ________________________, 1994
BPHPA1\SJD\0063816.04B
08/19/94 4.
<PAGE> 1
EXHIBIT 99.11
Form of Stock Option Assumption Agreement for Options issued to non-employee
directors pursuant to the Medisys, Inc. 1989 Stock Option Plan.
<PAGE> 2
EXHIBIT 99.11
STOCK OPTION ASSUMPTION AGREEMENT
NON-EMPLOYEE DIRECTOR
OPTIONEE: 1~,
NUMBER OF MEDISYS SHARES: 2~
GRANT DATE: 3~
ORIGINAL EXERCISE PRICE PER SHARE:
WHEREAS, the undersigned Optionee was previously granted the stock option
described above (the "Option") to purchase shares of the common stock of
Medisys, Inc. ("Medisys ") pursuant to the Medisys Stock Option Plan (the
"Plan").
WHEREAS, Medisys has become a wholly-owned subsidiary of Coram Healthcare
Corporation, a Delaware corporation ("Coram"), pursuant to a merger transaction
effected July ___, 1994 (the "Merger") in accordance with the terms and
provisions of that certain Agreement and Plan of Merger dated as of February 6,
1994 and amended May 25, 1994 (the "Merger Agreement") by and among Coram, T2
Medical, Inc., Curaflex Health Services, Inc. HealthInfusion, Inc., Medisys, T2
Acquisition Company, CHS Acquisition Company, HII Acquisition Company and MI
Acquisition Company.
WHEREAS, the Option was outstanding at the time of the Merger and eligible
for assumption by Coram in accordance with the provisions of the Plan and the
agreement evidencing the Option (the "Option Agreement").
WHEREAS, pursuant to Section 7.8 of the Merger Agreement, all options
outstanding under the Plan at the time of the Merger, including the Option,
were to be assumed by Coram and become options to purchase shares of Coram
common stock.
WHEREAS, pursuant to the provisions of the Merger Agreement, the exchange
ratio in effect for the Merger is 0.243 share of Coram common stock for each
outstanding share of Medisys common stock (the "Exchange Rate").
WHEREAS, certain adjustments to the Option are necessary to reflect the
effect of the assumption of that Option by Coram in connection with the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. Coram hereby assumes all the duties and obligations of Medisys under the
Option and hereby agrees to issue up to the number of shares of Coram common
stock indicated below upon (i) the exercise of that Option in accordance with
the provisions of
BPHPA1\SJD\0063816.06
08/19/94
<PAGE> 3
the Option Agreement (as supplemented hereby) and (ii) the payment of the
adjusted exercise price per share set forth below.
<TABLE>
<CAPTION>
MEDISYS CORAM
STOCK OPTION ASSUMED OPTION
------------ --------------
# of Shares # of Shares Adjusted
Medisys Exercise Coram Exercise
Common Stock Price/Share Common Stock Price/Share
------------ ----------- ------------ -----------
<S> <C> <C> <C>
</TABLE>
2. The number of shares of Coram common stock purchasable under the Option
hereby assumed (the "Assumed Option") and the exercise price per share payable
thereunder have been adjusted to reflect the Exchange Rate at which the
outstanding shares of Medisys common stock have been converted into shares of
Coram common stock on the consummation of the Merger. The intent of such
adjustments is to assure that the spread between the aggregate fair market
value of the Coram shares purchasable under the Assumed Option and the
aggregate exercise price as adjusted hereunder payable for such shares will,
immediately after the Merger, substantially equal and not exceed the spread
which existed immediately prior to the Merger between the then aggregate fair
market value of Medisys common stock subject to the Option and the aggregate
exercise price in effect at such time under the Option. Such adjustments are
also designed to preserve, on a per share basis immediately after the Merger,
the same ratio of fair market value per option share to exercise price per
share which existed under the Option immediately prior to the Merger.
3. All references to the "Company" in the Option Agreement shall be deemed
to include Coram, and all references to "Common Stock" shall be deemed to refer
to the shares of Coram common stock now subject to the Assumed Option. For
purposes of determining the holding period of any shares of Coram common stock
delivered in payment of the exercise price of the Assumed Option, the period
for which such shares were held as Medisys common stock prior to the Merger
shall be taken into account.
4. The Assumed Option shall continue to have a maximum ten (10)-year term
measured from the original grant date of the Option, and all references to the
"Grant Date" in the Option Agreement shall continue to relate to that original
grant date.
5. The Assumed Option shall be fully and immediately exercisable for all of
the shares of Coram common stock subject to the Option and may be exercised for
any or all of those shares at any time prior to the earlier of (i) the
expiration date of the option term or (ii) the end of the fifteen (15)-month
period immediately following Optionee's
BPHPA1\SJD\0063816.06
08/19/94 2.
<PAGE> 4
cessation of service as a member of the Medisys Board of Directors on the
effective date of the Merger.
6. All notices to Medisys required or permitted to be given to the Medisys
pursuant to the provisions of the Option Agreement shall be given to Coram at
the following address:
______________________________
______________________________
______________________________
7. Except to the extent specifically modified by this Option Assumption
Agreement, all of the terms and conditions of the Option Agreement as in effect
immediately prior to the Merger shall continue in full force and effect and
shall not in any way be amended, revised or otherwise affected by this Option
Assumption Agreement.
IN WITNESS WHEREOF, Coram Healthcare Corporation has caused this Option
Assumption Agreement to be executed on its behalf by its duly- authorized
officer as of the ___ day of July 1994.
CORAM HEALTHCARE CORPORATION
By: __________________________________
__________________________________
Title __________________________________
BPHPA1\SJD\0063816.06
08/19/94 3.
<PAGE> 5
ACKNOWLEDGMENT
The undersigned hereby acknowledges receipt of the foregoing Stock Option
Assumption Agreement and understands that all rights and liabilities with
respect to the Option as assumed by Coram Healthcare Corporation are as set
forth in the Option Agreement, the Plan and such Stock Option Assumption
Agreement.
_______________________________
OPTIONEE
Dated: ______________________, 1994
BPHPA1\SJD\0063816.06
08/19/94 4.
<PAGE> 1
EXHIBIT 99.23
Max Haid M.D. Stock Option Agreement dated February 24, 1994.
<PAGE> 2
EXHIBIT 99.23
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of February, 1994, (the
"Date of Grant"), by and between Medisys, Inc. (the "Company") and Max Haid,
M.D. (the "Optionee").
A. The Company has previously granted the Optionee an option to purchase
shares of the Company's Common Stock. The parties desire to evidence such
grant by this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Six Thousand (6,000) shares (the "Option Shares") of
the Company's common stock, $.01 par value (the "Common Stock"), according to
the terms and subject to the conditions set forth in this agreement. The
Option is not intended to be an "incentive stock option" as that term is used
in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.16.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on January 23, 2004 (the "Time of Termination"). If
the Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis, Minnesota, (Attention: Secretary), of a
written notice of exercise. Such notice shall be in
BPHPA1\MMR\0073688.WP
08/17/94
<PAGE> 3
a form satisfactory to the Company's Board of Directors of a committee of the
Board (the Board or such a committee shall be referred to as the "Committee",
shall identify the Option, shall specify the number of Option Shares with
respect to which the Option is being exercised, and shall be signed by the
person or persons so exercising the Option. Such notice shall be accompanied
by payment in full of the total purchase price of the Option Shares purchased.
In the event of the Optionee's death and the Option is being exercised, as
provided in Section 5 below, by any person or persons other than the Optionee,
the notice shall be accompanied by appropriate proof of right of such person or
persons to exercise the Option. As soon as practicable after the effective
exercise of the Option, the Optionee shall be recorded on the stock transfer
books of the Company as the owner of the Option shares purchased, and the
Company shall deliver to the Optionee one or more duly issued stock
certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act off 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration statement
under the Securities Act of 1933 is in effect with respect to the issuance or
transfer of Option Shares, each certificate representing any such shares shall
be restricted by the Company as to transfer unless the Company receives an
option of counsel satisfactory to the Company to the effect that registration
under the Securities Act of 1933 and applicable state securities laws is not
required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073688.WP
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding the Company before acting on
the Optionee's notice of exercise of this Option. In the event that the Company
is unable to withhold such amounts, for whatever reason, the Optionee hereby
agrees to pay to the Company an amount equal to the amount the Company would
otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073688.WP
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_______________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ Max Haid, M.D.
________________________________
BPHPA1\MMR\0073688.WP
08/17/94 4.
<PAGE> 1
EXHIBIT 99.24
Michael Cohen, M.D. Stock Option Agreement dated February 24, 1994.
<PAGE> 2
EXHIBIT 99.24
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of February, 1994, (the
"Date of Grant"), by and between Medisys, Inc. (the "Company") and Michael
Cohen, M.D. (the "Optionee").
A. The Company has previously granted the Optionee an option to purchase
shares of the Company's Common Stock. The parties desire to evidence such
grant by this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand Five Hundred (2,500) shares (the
"Option Shares") of the Company's common stock, $.01 par value (the "Common
Stock"), according to the terms and subject to the conditions set forth in this
Agreement. The Option is not intended to be an "incentive stock option" as
that term is used in Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.16.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on January 23, 2004 (the "Time of Termination"). If
the Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis,
BPHPA1\MMR\0073679.WP
08/17/94
<PAGE> 3
Minnesota, (Attention: Secretary), of a written notice of exercise. Such
notice shall be in a form satisfactory to the Company's Board of Directors or a
committee of the Board (the Board or such a committee shall be referred to as
the "Committee", shall identify the Option, shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be signed
by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, each certificate representing any such
shares shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
registration under the Securities Act of 1933 and applicable state securities
laws is not required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073679.WP
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding to the Company before acting
on the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073679.WP
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_______________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ Michael Cohen, M.D.
_______________________________
BPHPA1\MMR\0073679.WP
08/17/94 4.
<PAGE> 1
EXHIBIT 99.25
Michael Cohen, M.D. Stock Option Agreement dated May 24, 1994.
<PAGE> 2
EXHIBIT 99.25
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of May, 1994, (the "Date
of Grant"), by and between Medisys, Inc. (the "Company") and Michael Cohen,
M.D. (the "Optionee").
The Company has previously granted the Optionee an option to purchase shares
of the Company' s Common Stock. The parties desire to evidence such grant by
this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand (2,000) shares (the "Option Shares") of
the Company's common stock, $.01 par value (the "Common Stock"), according to
the terms and subject to the conditions set forth in this Agreement. The
Option is not intended to be an "incentive stock option" as that term is used
in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.375.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on May 23, 2004 (the "Time of Termination"). If the
Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis,
BPHPA1\MMR\0073683.01
08/17/94
<PAGE> 3
Minnesota (Attention: Secretary), of a written notice of exercise. Such notice
shall be in a form satisfactory to the Company's Board of Directors or a
committee of the Board (the Board or such a committee shall be referred to as
the "Committee," shall identify the Option, shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be signed
by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, each certificate representing any such
shares shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
registration under the Securities Act of 1933 and applicable state securities
laws is not required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073683.01
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding to the Company before acting
on the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073683.01
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_______________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ Michael Cohen, M.D.
________________________________
BPHPA1\MMR\0073683.01
08/17/94 4.
<PAGE> 1
EXHIBIT 99.26
Loren White, M.D. Stock Option Agreement dated February 24, 1994.
<PAGE> 2
EXHIBIT 99.26
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of February, 1994, (the
"Date of Grant"), by and between Medisys, Inc. (the "Company") and Loren White,
M.D. (the "Optionee").
A. The Company has previously granted the Optionee an option to purchase
shares of the Company's Common Stock. The parties desire to evidence such
grant by this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand Five Hundred (2,500) shares (the
"Option Shares") of the Company's common stock, $.01 par value (the "Common
Stock"), according to the terms and subject to the conditions set forth in this
Agreement. The Option is not intended to be an "incentive stock option" as
that term is used in Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.16.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on January 23, 2004 (the "Time of Termination"). If
the Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis,
BPHPA1\MMR\0073699.WP
08/17/94
<PAGE> 3
Minnesota, (Attention: Secretary), of a written notice of exercise. Such
notice shall be in a form satisfactory to the Company's Board of Directors or a
committee of the Board (the Board or such a committee shall be referred to as
the "Committee", shall identify the Option, shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be signed
by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, each certificate representing any such
shares shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
registration under the Securities Act of 1933 and applicable state securities
laws is not required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073699.WP
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding to the Company before acting
on the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073699.WP
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_______________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ Loren B. White, M.D.
_______________________________
BPHPA1\MMR\0073699.WP
08/17/94 4.
<PAGE> 1
EXHIBIT 99.27
Loren White, M.D. Stock Option Agreement dated May 24, 1994.
<PAGE> 2
EXHIBIT 99.27
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of May, 1994, (the "Date
of Grant"), by and between Medisys, Inc. (the "Company") and Loren White, M.D.
(the "Optionee").
The Company has previously granted the Optionee an option to purchase shares
of the Company's Common Stock. The parties desire to evidence such grant by
this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand (2,000) shares (the "Option Shares") of
the Company's common stock, $.01 par value (the "Common Stock"), according to
the terms and subject to the conditions set forth in this Agreement. The
Option is not intended to be an "incentive stock option" as that term is used
in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.375.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on May 23, 2004 (the "Time of Termination"). If the
Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or
BPHPA1\MMR\0073711.01
08/17/94
<PAGE> 3
by registered mail, to the Company at its principal executive office in
Minneapolis, Minnesota (Attention: Secretary), of a written notice of exercise.
Such notice shall be in a form satisfactory to the Company's Board of Directors
or a committee of the Board (the Board or such a committee shall be referred to
as the "Committee," shall identify the Option, shall specify the number of
Option Shares with respect to which the Option is being exercised, and shall be
signed by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, each certificate representing any such
shares shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
registration under the Securities Act of 1933 and applicable state securities
laws is not required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073711.01
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding to the Company before acting
on the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073711.01
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_________________________________
Its: Chief Executive Officer
(By execution hereof, OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ Lauren B. White
__________________________________
BPHPA1\MMR\0073711.01
08/17/94 4.
<PAGE> 1
EXHIBIT 99.28
David Sales, M.D. Stock Option Agreement dated February 24, 1994.
<PAGE> 2
EXHIBIT 99.28
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of February, 1994, (the
"Date of Grant"), by and between Medisys, Inc. (the "Company") and David Sales,
M.D. (the "Optionee").
The Company has previously granted the Optionee an option to purchase shares
of the Company's Common Stock. The parties desire to evidence such grant by
this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand Five Hundred (2,500) shares (the
"Option Shares") of the Company's common stock, $.01 par value (the "Common
Stock"), according to the terms and subject to the conditions set forth in this
Agreement. The Option is not intended to be an "incentive stock option" as
that term is used in Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.16.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at, 5:
00 p.m. (Illinois time) on January 23, 2004 (the "Time of Termination"). If
the Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative (s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis,
BPHPA1\MMR\0073705.01
08/17/94
<PAGE> 3
Minnesota (Attention: Secretary), of a written notice of exercise. Such notice
shall be in a form satisfactory to the Company' s Board of Directors or a
committee of the Board (the Board or such a committee shall be referred to as
the "Committee," shall identify the Option, shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be signed
by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, each certificate representing any such
shares shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
registration under the Securities Act of 1933 and applicable state securities
laws is not required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073705.01
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding to the Company before acting
on the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073705.01
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_________________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ David Sales, M.D.
__________________________________
BPHPA1\MMR\0073705.01
08/17/94 4.
<PAGE> 1
EXHIBIT 99.29
David Sales, M.D. Stock Option Agreement dated May 24, 1994.
<PAGE> 2
EXHIBIT 99.29
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of May, 1994, (the "Date
of Grant"), by and between Medisys, Inc. (the "Company") and David Sales, M.D.
(the "Optionee").
A. The Company has previously granted the Optionee an option to purchase
shares of the Company's Common Stock. The parties desire to evidence such
grant by this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand (2,000) shares (the "Option Shares") of
the Company's common stock, $.01 par value (the "Common Stock"), according to
the terms and subject to the conditions set forth in this Agreement. The
Option is not intended to be an "incentive stock option" as that term is used
in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.375.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on May 23, 2004 (the "Time of Termination"). If the
Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis,
BPHPA1\MMR\0073706.WP
08/17/94
<PAGE> 3
Minnesota, (Attention: Secretary), of a written notice of exercise. Such
notice shall be in a form satisfactory to the Company's Board of Directors or a
committee of the Board (the Board or such a committee shall be referred to as
the "Committee", shall identify the Option, shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be signed
by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration statement
under the Securities Act of 1933 is in effect with respect to the issuance or
transfer of Option Shares, each certificate representing any such shares shall
be restricted by the Company as to transfer unless the Company receives an
opinion of counsel satisfactory to the Company to the effect that registration
under the Securities Act of 1933 and applicable state securities laws is not
required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073706.WP
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding to the Company before acting
on the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073706.WP
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_______________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ David Sales, M.D.
_________________________________
BPHPA1\MMR\0073706.WP
08/17/94 4.
<PAGE> 1
EXHIBIT 99.30
Igor Jurcik, M.D. Stock Option Agreement dated February 24, 1994.
<PAGE> 2
EXHIBIT 99.30
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of February, 1994, (the
"Date of Grant"), by and between Medisys, Inc. (the "Company") and Igor Jurcik,
M.D. (the "Optionee").
A. The Company has previously granted the Optionee an option to purchase
shares of the Company's Common Stock. The parties desire to evidence such
grant by this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand Five Hundred (2,500) shares (the
"Option Shares") of the Company's common stock, $.01 par value (the "Common
Stock"), according to the terms and subject to the conditions set forth in this
Agreement. The Option is not intended to be an "incentive stock option" as
that term is used in Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.16.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on January 23, 2004 (the "Time of Termination"). If
the Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis,
BPHPA1\MMR\0073719.WP
08/17/94
<PAGE> 3
Minnesota, (Attention: Secretary), of a written notice of exercise. Such
notice shall be in a form satisfactory to the Company's Board of Directors or a
committee of the Board (the Board or such a committee shall be referred to as
the "Committee", shall identify the Option, shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be signed
by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, each certificate representing any such
shares shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
registration under the Securities Act of 1933 and applicable state securities
laws is not required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073719.WP
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
to tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding the Company before acting on
the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073719.WP
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
________________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ Igor Jurcik, M.D.
________________________________
BPHPA1\MMR\0073719.WP
08/17/94 4.
<PAGE> 1
EXHIBIT 99.31
Igor Jurcik, M.D. Stock Option Agreement dated May 24, 1994.
<PAGE> 2
EXHIBIT 99.31
STOCK OPTION AGREEMENT
AGREEMENT, entered into and effective this 24th day of May, 1994, (the "Date
of Grant"), by and between Medisys, Inc. (the "Company") and Igor Jurcik, M.D.
(the "Optionee").
The Company has previously granted the Optionee an option to purchase shares
of the Company's Common Stock. The parties desire to evidence such grant by
this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1 GRANT OF OPTION.
The Company hereby grants to the Optionee the right, privilege, and option
(the "Option") to purchase Two Thousand (2,000) shares (the "Option Shares") of
the Company's common stock, $.01 par value (the "Common Stock"), according to
the terms and subject to the conditions set forth in this Agreement. The
Option is not intended to be an "incentive stock option" as that term is used
in Section 422A of the Internal Revenue Code of 1986, as amended (the "Code").
SECTION 2 OPTION EXERCISE PRICE.
The per share price to be paid by Optionee in the event of an exercise of
the Option shall be $3.375.
SECTION 3 DURATION OF OPTION AND TIME OF EXERCISE.
The Option shall be immediately exercisable with respect to all of the
Option Shares. In no event shall this Option be exercisable after, and this
Option shall become void and expire as to all unexercised Option Shares at,
5:00 p.m. (Illinois time) on May 23, 2004 (the "Time of Termination"). If the
Optionee dies, this Option may be exercised by the Optionee's heir(s) or
personal representative(s) at any time before the earlier of (a) the Time of
Termination or (b) one year after the date of death.
SECTION 4 MANNER OF OPTION EXERCISE.
4.1 Notice. This Option may be exercised by the Optionee in whole or in
part from time to time, subject to the conditions contained herein, by
delivery, in person or by registered mail, to the Company at its principal
executive office in Minneapolis,
BPHPA1\MMR\0073716.01
08/17/94
<PAGE> 3
Minnesota (Attention: Secretary), of a written notice of exercise. Such notice
shall be in a form satisfactory to the Company's Board of Directors or a
committee of the Board (the Board or such a committee shall be referred to as
the "Committee," shall identify the Option, shall specify the number of Option
Shares with respect to which the Option is being exercised, and shall be signed
by the person or persons so exercising the Option. Such notice shall be
accompanied by payment in full of the total purchase price of the Option Shares
purchased. In the event of the Optionee's death and the Option is being
exercised, as provided in Section 5 below, by any person or persons other than
the Optionee, the notice shall be accompanied by appropriate proof of right of
such person or persons to exercise the Option. As soon as practicable after
the effective exercise of the Option, the Optionee shall be recorded on the
stock transfer books of the Company as the owner of the Option Shares
purchased, and the Company shall deliver to the Optionee one or more duly
issued stock certificates evidencing such ownership.
4.2 Payment. At the time of exercise of this Option, the Optionee shall
pay the total purchase price of the Option Shares to be purchased in cash.
4.3 Investment Purpose. The Company shall not be required to issue or
deliver any shares of Common Stock under this Option unless (a)(1) such shares
are covered by an effective and current registration statement under the
Securities Act of 1933 and applicable state securities laws or (2) if the
Committee has determined not to so register such shares, exemptions from
registration under the Securities Act of 1933 and applicable state securities
laws are available for such issuance (as determined by counsel to the Company
(and the Company has received from the Optionee (or, in the event of death or
disability, the Optionee's heir(s) or legal representative(s)) any
representations or agreements requested by the Company in order to permit such
issuance to be made pursuant to such exemptions, and (b) the Company has
obtained any other consent, approval or permit from any state or federal
governmental agency which the Committee shall, in its sole discretion upon the
advice of counsel, deem necessary or advisable. Unless a registration
statement under the Securities Act of 1933 is in effect with respect to the
issuance or transfer of Option Shares, each certificate representing any such
shares shall be restricted by the Company as to transfer unless the Company
receives an opinion of counsel satisfactory to the Company to the effect that
registration under the Securities Act of 1933 and applicable state securities
laws is not required with respect to such transfer.
SECTION 5 NONTRANSFERABILITY.
This Option shall not be transferable by the Optionee, either voluntarily or
involuntarily, or subject to any lien, directly or indirectly, by operation of
law or otherwise, except by the laws of descent and distribution in the event
of the Optionee's death. Any attempt to transfer or encumber this Option other
than in accordance with Section 5 shall void this Option.
BPHPA1\MMR\0073716.01
08/17/94 2.
<PAGE> 4
SECTION 6 LIMITATION OF LIABILITY.
Nothing in this Agreement shall be construed to (a) limit in any way the
right of the Company or any of its Subsidiaries to terminate the status of the
Optionee as a consultant or advisor to the Company at any time, or (b) be
evidence of any agreement or understanding express or implied, that the Company
or any of its Subsidiaries will employ the Optionee in any particular position,
at any particular rate of compensation or for any particular period of time.
SECTION 7 WITHHOLDING TAXES.
The Company is entitled to (a) withhold and deduct from future wages of the
Optionee, or make other arrangements for the collection of, all legally
required amounts necessary to satisfy any federal, state or local withholding
tax requirements attributable to the Optionee's exercise of this Option or
otherwise incurred with respect to this Option or (b) require the Optionee
promptly to remit the amount of such withholding to the Company before acting
on the Optionee's notice of exercise of this Option. In the event that the
Company is unable to withhold such amounts, for whatever reason, the Optionee
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal, state or local law.
SECTION 8 CAPITAL ADJUSTMENTS.
If the number of outstanding shares of Common Stock is increased or
decreased or changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company or of another corporation by reason
of any reorganization, merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, rights
offering or any other change in the corporate structure or shares of the
Company, the Committee (or, if the Company is not the surviving corporation in
any such transaction, the board of directors of the surviving corporation), in
order to prevent dilution or enlargement of the rights of the Optionee, shall
make appropriate adjustment as to the number and kind of securities subject to
this Option. Any such adjustment affecting this Option shall be made without
change in the aggregate purchase price applicable to the unexercised portion of
the Option but with an appropriate adjustment in the price for each share or
other unit of any security subject to the Option.
SECTION 9 BINDING EFFECT.
This Agreement shall be binding upon the heirs, executors, administrators
and successors of the parties hereto.
BPHPA1\MMR\0073716.01
08/17/94 3.
<PAGE> 5
SECTION 10 GOVERNING LAW.
This Agreement and all rights and obligations hereunder shall be construed
in accordance with the Plan and governed by the laws of the State of Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective the day and year first above written.
MEDISYS, INC.
By: /s/ William J. Brummond
_______________________________
Its: Chief Executive Officer
(By execution hereof, the OPTIONEE:
Optionee acknowledges having
received a copy of the
Agreement.) /s/ Igor Jurcik, M.D.
_______________________________
BPHPA1\MMR\0073716.01
08/17/94 4.
<PAGE> 1
EXHIBIT 99.32
Form of Stock Option Assumption Agreement for Options granted pursuant to
Written Agreements described in Exhibits 99.12 through 99.15 and
99.23 through 99.31.
<PAGE> 2
EXHIBIT 99.32
STOCK OPTION ASSUMPTION AGREEMENT
OPTIONEE: 1~
NUMBER OF MEDISYS SHARES: 2~
GRANT DATE: 3~
ORIGINAL EXERCISE PRICE PER SHARE: 4~
WHEREAS, the undersigned Optionee was previously granted the
stock option described above (the "Option") to purchase shares of the common
stock of Medisys, Inc. ("Medisys ") pursuant to that certain stock option
agreement dated _______________, 1994 (the "Option Agreement").
WHEREAS, Medisys has become a wholly-owned subsidiary of Coram
Healthcare Corporation, a Delaware corporation ("Coram"), pursuant to a merger
transaction effected July 8, 1994 (the "Merger") in accordance with the terms
and provisions of that certain Agreement and Plan of Merger dated as of
February 6, 1994 and amended May 25, 1994 (the "Merger Agreement") by and among
Coram, T2 Medical, Inc., Curaflex Health Services, Inc., HealthInfusion, Inc.,
Medisys, T2 Acquisition Company, CHS Acquisition Company, HII Acquisition
Company and MI Acquisition Company.
WHEREAS, the Option was outstanding at the time of the Merger
and eligible for assumption by Coram in accordance with the provisions of the
Option Agreement.
WHEREAS, pursuant to Article 7.8 of the Merger Agreement, all
options outstanding at the time of the Merger, including the Option, were to be
assumed by Coram and become options to purchase shares of Coram common stock.
WHEREAS, pursuant to the provisions of the Merger Agreement,
the exchange ratio in effect for the Merger is 0.243 share of Coram common
stock for each outstanding share of Medisys common stock (the "Exchange Rate").
WHEREAS, certain adjustments to the Option are necessary to
reflect the effect of the assumption of the Option by Coram in connection with
the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. Coram hereby assumes all the duties and obligations
of Medisys under the Option and hereby agrees to issue up to the number of
shares of Coram common stock indicated below upon (i) the exercise of that
Option in accordance with the provisions of the Option Agreement (as
supplemented hereby) and (ii) the payment of the adjusted exercise price per
share set forth below.
BPHPA1\DKH\0076581.04
09/15/94
<PAGE> 3
MEDISYS CORAM
STOCK OPTION ASSUMED OPTION
------------ --------------
# of Shares # of Shares Adjusted
Medisys Exercise Coram Exercise
Common Stock Price/Share Common Stock Price/Share
------------ ----------- ------------ -----------
2. The number of shares of Coram common stock
purchasable under the Option hereby assumed (the "Assumed Option") and the
exercise price per share payable thereunder have been adjusted to reflect the
Exchange Rate at which the outstanding shares of Medisys common stock have been
converted into shares of Coram common stock on the consummation of the Merger.
The intent of such adjustments is to assure that the spread between the
aggregate fair market value of the Coram shares purchasable under the Assumed
Option and the aggregate adjusted exercise price payable for such shares will,
immediately after the Merger, substantially equal and not exceed the spread
which existed immediately prior to the Merger between the then aggregate fair
market value of Medisys common stock subject to the Option and the aggregate
exercise price in effect at such time under the Option. Such adjustments are
also designed to preserve, on a per share basis immediately after the Merger,
the same ratio of fair market value per option share to exercise price per
option share which existed under the Option immediately prior to the Merger.
3. All references to the "Company" in the Option
Agreement shall be deemed to include Coram, and all references to "Common
Stock" shall be deemed to refer to the shares of Coram common stock now subject
to the Assumed Option.
4. The Assumed Option shall be fully and immediately
exercisable for all of the shares of Coram common stock subject to that option
and shall remain so exercisable until the earlier of (i) the Time of
Termination specified in the original Option Agreement or (ii) the expiration
of the one-year period following the Optionee's death while the Option is
outstanding.
5. All notices to Medisys required or permitted to be
given to the Medisys pursuant to the provisions of the Option Agreement shall
be given to Coram at the following address:
Coram Healthcare Corporation
4675 MacArthur Court, Suite 1250
Newport Beach, CA 92660
2
BPHPA1\DKH\0076581.04
09/15/94
<PAGE> 4
6. Except to the extent specifically modified by this
Option Assumption Agreement, all of the terms and conditions of the Option
Agreement as in effect immediately prior to the Merger shall continue in full
force and effect and shall not in any way be amended, revised or otherwise
affected by this Option Assumption Agreement.
IN WITNESS WHEREOF, Coram Healthcare Corporation has caused
this Option Assumption Agreement to be executed on its behalf by its
duly-authorized officer as of the ______ day of September 1994.
CORAM HEALTHCARE CORPORATION
By:___________________________________
Title:________________________________
BPHPA1\DKH\0076581.04
09/15/94 3.
<PAGE> 5
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock
Option Assumption Agreement and understands that all rights and liabilities
with respect to the Option as assumed by Coram Healthcare Corporation are as
set forth in the Option Agreement and such Stock Option Assumption Agreement.
____________________________________
OPTIONEE
Dated: ______________, 1994
BPHPA1\DKH\0076581.04
09/15/94 4.
<PAGE> 1
EXHIBIT 99.33
Form of Stock Option Assumption Agreement for Options granted
pursuant to Written Agreements described in Exhibits 99.16 through 99.22.
<PAGE> 2
EXHIBIT 99.33
STOCK OPTION ASSUMPTION AGREEMENT
OPTIONEE: 1~
NUMBER OF MEDISYS SHARES: 2~
GRANT DATE: 3~
ORIGINAL EXERCISE PRICE PER SHARE: 4~
WHEREAS, the undersigned Optionee was previously granted the
stock option described above (the "Option") to purchase shares of the common
stock of Medisys, Inc. ("Medisys ") pursuant to that certain stock option
agreement dated December 4, 1992 (the "Option Agreement").
WHEREAS, Medisys has become a wholly-owned subsidiary of Coram
Healthcare Corporation, a Delaware corporation ("Coram"), pursuant to a merger
transaction effected July 8, 1994 (the "Merger") in accordance with the terms
and provisions of that certain Agreement and Plan of Merger dated as of
February 6, 1994 and amended May 25, 1994 (the "Merger Agreement") by and among
Coram, T2 Medical, Inc., Curaflex Health Services, Inc., HealthInfusion, Inc.,
Medisys, T2 Acquisition Company, CHS Acquisition Company, HII Acquisition
Company and MI Acquisition Company.
WHEREAS, the Option was outstanding at the time of the Merger
and eligible for assumption by Coram in accordance with the provisions of the
Option Agreement.
WHEREAS, pursuant to Article 7.8 of the Merger Agreement, all
options outstanding at the time of the Merger, including the Option, were to be
assumed by Coram and become options to purchase shares of Coram common stock.
WHEREAS, pursuant to the provisions of the Merger Agreement,
the exchange ratio in effect for the Merger is 0.243 share of Coram common
stock for each outstanding share of Medisys common stock (the "Exchange Rate").
WHEREAS, certain adjustments to the Option are necessary to
reflect the effect of the assumption of the Option by Coram in connection with
the Merger.
NOW, THEREFORE, it is hereby agreed as follows:
1. Coram hereby assumes all the duties and obligations
of Medisys under the Option and hereby agrees to issue up to the number of
shares of Coram common stock indicated below upon (i) the exercise of that
Option in accordance with the provisions of the Option Agreement (as
supplemented hereby) and (ii) the payment of the adjusted exercise price per
share set forth below.
BPHPA1\DKH\0076581.02B
09/15/94
<PAGE> 3
MEDISYS CORAM
STOCK OPTION ASSUMED OPTION
------------ --------------
# of Shares # of Shares Adjusted
Medisys Exercise Coram Exercise
Common Stock Price/Share Common Stock Price/Share
------------ ----------- ------------ -----------
2. The number of shares of Coram common stock
purchasable under the Option hereby assumed (the "Assumed Option") and the
exercise price per share payable thereunder have been adjusted to reflect the
Exchange Rate at which the outstanding shares of Medisys common stock have been
converted into shares of Coram common stock on the consummation of the Merger.
The intent of such adjustments is to assure that the spread between the
aggregate fair market value of the Coram shares purchasable under the Assumed
Option and the aggregate adjusted exercise price payable for such shares will,
immediately after the Merger, substantially equal and not exceed the spread
which existed immediately prior to the Merger between the then aggregate fair
market value of Medisys common stock subject to the Option and the aggregate
exercise price in effect at such time under the Option. Such adjustments are
also designed to preserve, on a per share basis immediately after the Merger,
the same ratio of fair market value per option share to exercise price per
option share which existed under the Option immediately prior to the Merger.
3. All references to the "Company" in the Option
Agreement shall be deemed to include Coram, and all references to "Common
Stock" shall be deemed to refer to the shares of Coram common stock now subject
to the Assumed Option.
4. The Assumed Option shall continue to become
exercisable in accordance with the same exercise/vesting schedule in effect
under the Option immediately prior to the Merger and may be exercised for any
shares of Coram common stock for which the Assumed Option becomes so
exercisable until the earliest to occur of (i) the Time of Termination
specified in the original Option Agreement, (ii) Optionee's cessation of
service as a member of the CareVan Medical Systems of Illinois, Inc. Physician
Advisory Board, either involuntarily for cause (as defined in the Option
Agreement) or voluntarily through resignation or other notice of termination,
or (iii) the expiration of the twelve (12) month period following the
Optionee's death while serving on such Physician Advisory Board.
5. All notices to Medisys required or permitted to be
given to the Medisys pursuant to the provisions of the Option Agreement shall
be given to Coram at the following address:
BPHPA1\DKH\0076581.02B
09/15/94 2.
<PAGE> 4
Coram Healthcare Corporation
4675 MacArthur Court, Suite 1250
Newport Beach, CA 92660
6. Except to the extent specifically modified by this
Option Assumption Agreement, all of the terms and conditions of the Option
Agreement as in effect immediately prior to the Merger shall continue in full
force and effect and shall not in any way be amended, revised or otherwise
affected by this Option Assumption Agreement.
IN WITNESS WHEREOF, Coram Healthcare Corporation has caused
this Option Assumption Agreement to be executed on its behalf by its
duly-authorized officer as of the ______ day of September 1994.
CORAM HEALTHCARE CORPORATION
By:____________________________________
Title:_________________________________
BPHPA1\DKH\0076581.02B
09/15/94 3.
<PAGE> 5
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock
Option Assumption Agreement and understands that all rights and liabilities
with respect to the Option as assumed by Coram Healthcare Corporation are as
set forth in the Option Agreement and such Stock Option Assumption Agreement.
_____________________________________
OPTIONEE
Dated: ______________, 1994
BPHPA1\DKH\0076581.02B
09/15/94 4.
