<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 1998
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------------
TOTAL RENAL CARE HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 51-0354549
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503-5517
(310) 792-2600
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
----------------------
Total Renal Care Holdings, Inc. Special Purpose Option Plan
(Full title of the plan)
JOHN E. KING
Chief Financial Officer
Total Renal Care Holdings, Inc.
21250 Hawthorne Boulevard, Suite 800
Torrance, California 90503-5517
(310) 792-2600
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
COPIES TO:
JAMES W. LOSS, Esq.
Riordan & McKinzie
695 Town Center Drive, Suite 1500
Costa Mesa, California 92626
(714) 433-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE/(1)/ OFFERING PRICE FEE
- ---------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,382,421 $30.875 $42,682,248 $12,595
=======================================================================================
</TABLE>
/(1)/Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457, based on the average of the high and low sales prices of
the Company's Common Stock on February 23, 1998, respectively, as reported on
the New York Stock Exchange.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Total Renal Care Holdings, Inc., ("the
Company") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by reference:
(1) Annual Report of the Company on Form 10-K for the fiscal year
ended December 31, 1996.
(2) All other reports filed by the Company pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since December 31, 1996, the end of the Company's most recently
completed fiscal year for which an Annual Report on Form 10-K was filed.
(3) The description of the common stock of the Company (the "Common
Stock") contained in the Company's Registration Statement on Form 8-A, filed
October 21, 1995.
(4) All documents subsequently filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock registered
hereby (the "Shares") has been passed upon for the Company by Barry C. Cosgrove,
General Counsel of the Company. Mr. Cosgrove holds Common Stock and options to
purchase Common Stock granted under the Company's employee stock plans which in
the aggregate represent less than 1% of the Common Stock.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Delaware corporation. Section 145 of the Delaware
General Corporation Law provides that a Delaware corporation may indemnify any
person against expenses, judgments, fines and settlements actually and
reasonably incurred by any such person in connection with a threatened, pending
or completed action, suit or proceeding in which such person is involved by
reason of the fact that he or she is or was a director, officer, employee or
agent of such corporation, provided that (i) such person acted in good faith and
in a manner reasonably believed to be in or not opposed to the best interests of
the corporation and (ii) with respect to any criminal action or proceeding, such
person had no reasonable cause to believe his or her conduct was unlawful. If
the action or suit is by or in the name of the corporation, the corporation may
indemnify any such person against expense actually and reasonably incurred by
him or her in connection with the defense or settlement of such action or suit
if such person acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification may be made in respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the Delaware Court of Chancery or the court in which the
action or suit is brought determines upon application that, despite the
adjudication of liability but in view of all of the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expense as
the court deems proper.
Article XI, Section 1 of the Company's By-Laws provides for
indemnification of persons to the fullest extent permitted by the Delaware
General Corporation Law.
In accordance with the Delaware General Corporation Law, the Company's
Certificate of Incorporation, as amended, limits the personal liability of its
directors for violations of their fiduciary duty. The Certificate of
Incorporation eliminates each director's liability to the Company or its
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware General Corporation Law
providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions, or (iv) for any transaction from which
a director derived an improper benefit. The effect of this provision is to
eliminate the personal liability of directors for monetary damages for actions
involving a breach of their fiduciary duty of care, including any such actions
involving gross negligence. This provision will not, however, limit in any way
the liability of directors for violations of the federal securities laws.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Total Renal Care Holdings, Inc. Special Purpose Option Plan.
5.1 Opinion of Barry C. Cosgrove, General Counsel, Total Renal Care
Holdings, Inc.
23.1 Consent of Barry C. Cosgrove, General Counsel, Total Renal Care
Holdings, Inc. (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of Maier Markey & Menashi LLP.
24.1 Powers of Attorney (included on page II-4).
II-2
<PAGE>
ITEM 9. UNDERTAKINGS.
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 "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided however, that paragraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 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 Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Torrance, State of California, on February 25, 1998.
TOTAL RENAL CARE HOLDINGS, INC.
By: /s/ JOHN E. KING
-----------------------
John E. King
Chief Financial Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John E. King, Victor M.G. Chaltiel and
Barry C. Cosgrove, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ VICTOR M.G. CHALTIEL Chairman of the Board, Chief Executive February 25, 1998
- ------------------------ Officer, and Director
Victor M.G. Chaltiel
/s/ JOHN E. KING Vice President, Finance and February 25, 1998
- ------------------------ Chief Financial Officer
John E. King
/s/ MARIS ANDERSONS
- ------------------------ Director February 25, 1998
Maris Andersons
/s/ PETER T. GRAUER
- ------------------------ Director February 25, 1998
Peter T. Grauer
/s/ REGINA E. HERZLINGER
- ------------------------ Director February 25, 1998
Regina E. Herzlinger
/s/ SHAUL G. MASSRY
- ------------------------ Director February 25, 1998
Shaul G. Massry
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
Sequentially
Numbered
Exhibit Description Page Number
- --------- ----------- -----------
4.1 Total Renal Care Holdings, Inc. Special Purpose Option Plan.
5.1 Opinion of Barry C. Cosgrove, General Counsel, Total Renal Care Holdings,
Inc.
23.1 Consent of Barry C. Cosgrove, General Counsel, Total Renal Care Holdings,
Inc. (included in Exhibit 5.1).
23.2 Consent of Price Waterhouse LLP.
23.3 Consent of KPMG Peat Marwick LLP.
23.4 Consent of Maier Markey & Menashi LLP.
24.1 Powers of Attorney (included on page II-4).
II-5
<PAGE>
EXHIBIT 4.1
TOTAL RENAL CARE HOLDINGS, INC.
SPECIAL PURPOSE OPTION PLAN
---------------------------
1. Purpose. This Special Purpose Option Plan (the "Plan") is created to
-------
provide for the issuance of Adjusted Options, as such term is defined in that
certain Agreement and Plan of Merger (the "Merger Agreement") dated November 18,
1997, by and among Total Renal Care Holdings, Inc., a Delaware corporation (the
"Company"), Nevada Acquisition Corp., a Delaware corporation and wholly-owned
subsidiary of the Company, and Renal Treatment Centers, Inc., a Delaware
corporation ("RTC"), in substitution for the outstanding options under RTC's
Amended and Restated 1990 Stock Plan and RTC's Equity Incentive Plan for Outside
Directors as required by the Merger Agreement. The Adjusted Options are
intended to provide the current and former officers, directors and employees of
RTC and its subsidiaries with opportunities to purchase stock in the Company
pursuant to options granted hereunder which qualify as "incentive stock options"
under Section 422(b) of the Internal Revenue Code of 1986 (the "Code") ("ISO" or
"ISOs") and options granted hereunder which do not qualify as ISOs ("Non-
Qualified Option" or "Non-Qualified Options"). The Plan may also provide such
directors, officers, and employees with awards of stock in the Company
("Awards") and with opportunities to make direct purchases of stock in the
Company ("Purchases"). Both ISOs and Non-Qualified Options are referred to
hereinafter individually as an "Option" and collectively as "Options". Options,
Awards and authorizations to make Purchases are referred to hereinafter
collectively as "Stock Rights". As used herein, the terms "parent" and
"subsidiary" mean "parent corporation" and "subsidiary corporation,"
respectively, as those terms are defined in Section 425 of the Code.
2. Administration of the Plan.
--------------------------
A. Board or Committee Administration. The Plan shall be administered
---------------------------------
by the Board of Directors of the Company (the "Board"). The Board may
appoint a Stock Plan Committee (the "Committee") of two or more directors
to administer the Plan. A director of the Company shall be eligible to
serve on the Committee only if he or she qualifies as a "non-employee
director" for purposes of Rule 16b-3 under the Securities Exchange Act of
1934. In addition, each member of the Committee shall be an "outside
director" within the meaning of Section 162(m) of the Code. Hereinafter,
all references in this Plan to the "Committee" shall mean the Board if no
Committee has been appointed. Subject to the terms of the Plan, the
Committee shall have the authority to (i) determine the employees of the
Company and any present or future subsidiaries of the Company
(collectively, "Related Corporations") (from among the class of employees
eligible under paragraph 3 to receive ISOs) to whom ISOs may be granted,
and to determine (from among the class of individuals and entities eligible
under paragraph 3 to receive Non-Qualified Options and Awards and to make
Purchases) to whom Non-Qualified Options, Awards and authorizations to make
Purchases may be granted; (ii) determine the time or times at
<PAGE>
which Options or Awards may be granted or Purchases made; (iii) determine
the option price of shares subject to each Option, which price shall not be
less than the minimum price specified in paragraph 6, and the purchase
price of shares subject to each Purchase; (iv) determine whether each
Option granted shall be an ISO or a Non-Qualified Option; (v) determine
(subject to paragraph 7) the time or times when each Option shall become
exercisable and the duration of the exercise period; (vi) determine whether
restrictions such as repurchase options are to be imposed on shares subject
to Options, Awards and Purchases and the nature of such restrictions, if
any; and (vii) interpret the Plan and prescribe and rescind rules and
regulations relating to it. If the Committee determines to issue a Non-
Qualified Option, it shall take whatever actions it deems necessary, under
Section 422 of the Code and the regulations promulgated thereunder, to
ensure that such Option is not treated as an ISO. The interpretation and
construction by the Committee of any provisions of the Plan or of any Stock
Right granted under it shall be final unless otherwise determined by the
Board or except as may be specified in the instrument evidencing the grant
of a stock right. The Committee may from time to time adopt such rules and
regulations for carrying out the Plan as it may deem best. No member of
the Board or the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Stock Right granted
under it.
B. Committee Actions. The Committee may select one of its members as
-----------------
its chairman, and shall hold meetings at such time and places as it may
determine. Acts by a majority of the Committee, or acts reduced to or
approved in writing by a majority of the members of the Committee, shall be
the valid acts of the Committee. 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.
3. Eligible Employees and Others. ISOs may be granted to any employee of
-----------------------------
the Company or any Related Corporation. Those officers and directors of the
Company who are not employees may not be granted ISOs under the Plan. Non-
Qualified Options, Awards and authorizations to make Purchases may be granted to
any employee, officer or director (whether or not also an employee) or
consultant of the Company or any Related Corporation. The Committee may take
into consideration a recipient's individual circumstances in determining whether
to grant an ISO, a Non-Qualified Option, an Award or an authorization to make a
Purchase. Granting of any Stock Right to any individual or entity shall neither
entitle that individual or entity to, nor disqualify him from, participation in
any other grant of Stock Rights.
4. Stock. The stock subject to Options, Awards and Purchases shall be
-----
authorized but unissued shares of Common Stock of the Company, par value $0.00l
per share (the "Common Stock"), or shares of Common Stock reacquired by the
Company in any manner. The
2
<PAGE>
aggregate number of shares which may be issued pursuant to the Plan is
3,239,979, subject to adjustment as provided in paragraph 13. Moreover, for the
period commencing on January 1, 1994 until September 27, 2000, no employee shall
be granted options for more than 500,000 shares pursuant to this Plan. Any such
shares may be issued as ISOs, Non-Qualified Options or Awards, or to persons or
entities making Purchases, so long as the number of shares so issued does not
exceed such number, as adjusted. If any Option granted under the Plan shall
expire or terminate for any reason without having been exercised in full or
shall cease for any reason to be exercisable in whole or in part, or if the
Company shall reacquire any unvested shares issued pursuant to Awards or
Purchases, the unpurchased shares subject to such Options and any unvested
shares so reacquired by the Company shall again be available for grants of Stock
Rights under the Plan.
5. Granting of Stock Rights. Stock Rights may be assumed or granted under
------------------------
the Plan at any time on or after February 27, 1998 and prior to September 27,
2000. The date of grant of a Stock Right under the Plan will be the date
specified by the Committee at the time it grants the Stock Right; provided,
however, that such date shall not be prior to the date on which the Committee
acts to approve the grant. The Committee shall have the right, with the consent
of the optionee, to convert an ISO granted under the Plan to a Non-Qualified
Option pursuant to paragraph 16.
6. Minimum Option Price; ISO Limitations.
-------------------------------------
A. Price for Non-Qualified Options. The exercise price per share
-------------------------------
specified in the agreement relating to each Non-Qualified Option granted
under the Plan shall in no event be less than the lesser of (i) the book
value per share of Common Stock as of the end of the fiscal year of the
Company immediately preceding the date of such grant, or (ii) fifty percent
(50%) of the fair market value per share of Common Stock on the date of
such grant.
B. Price for ISOs. The exercise price per share specified in the
--------------
agreement relating to each ISO granted under the Plan shall not be less
than the fair market value per share of Common Stock on the date of such
grant. In the case of an ISO to be granted to an employee owning stock
possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of the Company or any Related Corporation, the
price per share specified in the agreement relating to such ISO shall not
be less than one hundred ten percent (110%) of the fair market value per
share of Common Stock on the date of grant.
C. $100,000 Annual Limitation on ISOs. Each eligible employee may be
----------------------------------
granted ISOs only to the extent that, in the aggregate under this Plan and
all incentive stock option plans of the Company and any Related
Corporation, such ISOs do not become exercisable for the first time by such
employee during any calendar year in a manner which would entitle the
employee to purchase more than $100,000 in fair
3
<PAGE>
market value (determined at the time the ISOs were granted) of Common Stock
in that year. Any options granted to an employee in excess of such amount
will be granted as Non-Qualified Options.
D. Determination of Fair Market Value. If, at the time an Option is
----------------------------------
granted under the Plan, the Company's Common Stock is publicly traded,
"fair market value" shall be determined on the date such Option is granted
(or the first preceding business day for which the prices or quotes are
available, if the date of grant is not a business day) and shall mean (i)
the closing price (on that date) or the average of the high and low prices
(on that date) of the Common Stock on the principal national securities
exchange on which the Common Stock is traded, if the Common Stock is then
traded on a national securities exchange; or (ii) the last reported sale
price (on that date) of the Common Stock on the NASDAQ National Market
List, if the Common Stock is not then traded on a national securities
exchange; or (iii) the closing bid price (or average of bid prices) last
quoted (on that date) by an established quotation service for over-the-
counter securities, if the Common Stock is not reported on the NASDAQ
National Market List. However, if the Common Stock is not publicly traded
at the time an Option is granted under the Plan, "fair market value" shall
be deemed to be the fair value of the Common Stock as determined by the
Committee after taking into consideration all factors which it deems
appropriate, including, without limitation, recent sale and offer prices of
the Common Stock in private transactions negotiated at arm's length.
7. Option Duration. Subject to earlier termination as provided in
---------------
paragraphs 9 and 10, each option shall expire on the date specified by the
Committee, but not more than (i) ten years and one day from the date of grant in
the case of Non-Qualified Options, (ii) ten years from the date of grant in the
case of ISOs generally, and (iii) five years from the date of grant in the case
of ISOs granted to an employee owning stock possessing more than ten percent
(10%) of the total combined voting power of all classes of stock of the Company
or any Related Corporation. Subject to earlier termination as provided in
paragraphs 9 and 10, the term of each ISO shall be the term set forth in the
original instrument granting such ISO, except with respect to any part of such
ISO that is converted into a Non-Qualified Option pursuant to paragraph 16.
8. Exercise of Option. Subject to the provisions of paragraphs 9 through
------------------
12, each Option granted under the Plan shall be exercisable as follows:
A. Vesting. The Option shall either be fully exercisable on the date
-------
of grant or shall become exercisable thereafter in such installments as the
Committee may specify. The Committee may also establish certain
conditions, including, without limitation, performance criteria with
respect to the Company and/or the optionee, which must be satisfied before
an option may be exercised.
4
<PAGE>
B. Full Vesting of Installments. Once an installment becomes
----------------------------
exercisable it shall remain exercisable until expiration or termination of
the Option, unless otherwise specified by the Committee.
C. Partial Exercise. Each Option or installment may be exercised at
----------------
any time or from time to time, in whole or in part, for up to the total
number of shares with respect to which it is then exercisable.
D. Acceleration of Vesting. The Committee shall have the right to
-----------------------
accelerate the date of exercise of any installment of any option, upon such
circumstances and subject to such terms and conditions as the Committee
deems appropriate; provided that the Committee shall not, without the
consent of an optionee, accelerate the exercise date of any installment of
any option granted to any employee as an ISO (and not previously converted
into a Non-Qualified Option pursuant to paragraph 16) if such acceleration
would violate the annual vesting limitation contained in Section 422(d) of
the Code, as described in paragraph 6(C).
9. Termination of Employment. If an ISO optionee ceases to be employed
-------------------------
by the Company and all Related Corporations other than by reason of death or
disability as defined in paragraph 10, no further installments of his ISOs shall
become exercisable, and his ISOs shall terminate after the passage of ninety
(90) days from the date of termination of his employment, but in no event later
than on their specified expiration dates, except to the extent that such ISOs
(or unexercised installments thereof) have been converted into Non-Qualified
Options pursuant to paragraph 16. Employment shall be considered as continuing
uninterrupted during any bona fide leave of absence (such as those attributable
to illness, military obligations or governmental service) provided that the
period of such leave does not exceed 90 days or, if longer, any period during
which such optionee's right to reemployment is guaranteed by statute. A bona
fide leave of absence with the written approval of the Committee shall not be
considered an interruption of employment under the Plan, provided that such
written approval contractually obligates the Company or any Related Corporation
to continue the employment of the optionee after the approved period of absence.
ISOs granted under the Plan shall not be affected by any change of employment
within or among the Company and Related Corporations, so long as the optionee
continues to be an employee of the Company or any Related Corporation. Nothing
in the Plan shall be deemed to give any grantee of any Stock Right the right to
be retained in employment or other service by the Company or any Related
Corporation for any period of time.
10. Death; Disability.
-----------------
A. Death. If an ISO optionee ceases to be employed by the Company
-----
and all Related Corporations by reason of his death, any ISO of his may be
exercised, to the extent of the number of shares with respect to which he
could have exercised it on the date of his death (or to such greater extent
as may be specified in the instrument
5
<PAGE>
evidencing the grant of such ISO), by his estate, personal representative
or beneficiary who has acquired the ISO by will or by the laws of descent
and distribution, at any time prior to the earlier of the specified
expiration date of the ISO or 180 days from the date of the optionee's
death.
B. Disability. If an ISO optionee ceases to be employed by the
----------
Company and all Related Corporations by reason of his disability, he shall
have the right to exercise any ISO held by him on the date of termination
of employment, to the extent of the number of shares with respect to which
he could have exercised it on that date (or to such greater extent as may
be specified in the instrument evidencing the grant of such ISO), at any
time prior to the earlier of the specified expiration date of the ISO or
180 days from the date of the termination of the optionee's employment.
For the purposes of the Plan, the term "disability" shall mean "permanent
and total disability" as defined in Section 22(e)(3) of the Code or
successor statute.
11. Assignability. No option or right to make Purchases shall be
-------------
assignable or transferable by the optionee or grantee thereof except by will or
by the laws of descent and distribution, and during the lifetime of the optionee
or grantee, each Option or right to make Purchases shall be exercisable only by
him or his guardian.
12. Terms and Conditions of Options. Options shall be evidenced by
-------------------------------
instruments (which need not be identical) in such forms as the Committee may
from time to time approve. Such instruments shall conform to the terms and
conditions set forth in paragraphs 6 through 11 hereof and may contain such
other provisions as the Committee deems advisable which are not inconsistent
with the Plan, including restrictions applicable to shares of Common Stock
issuable upon exercise of Options. In granting any Non-Qualified Option, the
Committee may specify that such Non-Qualified Option shall be subject to the
restrictions set forth herein with respect to ISOs, or to such other termination
and cancellation provisions as the Committee may determine. The Committee may
from time to time confer authority and responsibility on one or more of its own
members and/or one or more officers of the Company to execute and deliver such
instruments. The proper officers of the Company are authorized and directed to
take any and all action necessary or advisable from time to time to carry out
the terms of such instruments.
13. Adjustments. Upon the occurrence of any of the following events, an
-----------
optionee's rights with respect to Options granted to him hereunder shall be
adjusted as hereinafter provided, unless otherwise specifically provided in the
written agreement between the optionee and the Company relating to such Option:
A. Stock Dividends and Stock Splits. If the shares of Common Stock
--------------------------------
shall be subdivided or combined into a greater or smaller number of shares
or if the Company shall issue any shares of Common Stock as a stock
dividend on its outstanding Common Stock, the number of shares of Common
Stock deliverable upon
6
<PAGE>
the exercise of Options shall be appropriately increased or decreased
proportionately, and appropriate adjustments shall be made in the purchase
price per share to reflect such subdivision, combination or stock dividend.
B. Consolidations or Mergers. If the Company is to be consolidated
-------------------------
with or acquired by another entity in a merger, sale of all or
substantially all of the Company's assets or otherwise (an "Acquisition"),
the Committee or the board of directors of any entity assuming the
obligations of the Company hereunder (the "Successor Board"), shall, as to
outstanding Options, either (i) make appropriate provision for the
continuation of such Options by substituting on an equitable basis for the
shares then subject to such Options the consideration payable with respect
to the outstanding shares of Common Stock in connection with the
Acquisition; or (ii) upon written notice to the optionees, provide that all
Options must be exercised, to the extent then exercisable (or to such
greater extent as may be specified in the instrument evidencing the grant
of the Option), within a specified number of days of the date of such
notice, at the end of which period the Options shall terminate; or (iii)
terminate all Options in exchange for a cash payment equal to the excess of
the fair market value of the shares subject to such Options to the extent
then exercisable (or to such greater extent as may be specified in the
instrument evidencing the grant of the Option) over the exercise price
thereof.
C. Recapitalization or Reorganization. In the event of a
----------------------------------
recapitalization or reorganization of the Company (other than a transaction
described in subparagraph B above) pursuant to which securities of the
Company or of another corporation are issued with respect to the
outstanding shares of Common Stock, an optionee upon exercising an Option
shall be entitled to receive for the purchase price paid upon such exercise
the securities he would have received if he had exercised his Option prior
to such recapitalization or reorganization.
D. Modification of ISOs. Notwithstanding the foregoing, any
--------------------
adjustments made pursuant to subparagraphs A, B or C with respect to ISOs
shall be made only after the Committee, after consulting with counsel for
the Company, determines whether such adjustments would constitute a
"modification" of such ISOs (as that term is defined in Section 425 of the
Code) or would cause any adverse tax consequences for the holders of such
ISOs. If the Committee determines that such adjustments made with respect
to ISOs would constitute a modification of such ISOs, it shall offer the
holder of such ISOs the option to convert the ISOs into Non-Qualified
Options as provided in paragraph 16 or refrain from making such
adjustments.
E. Dissolution or Liquidation. In the event of the proposed
--------------------------
dissolution or liquidation of the Company, each Option will terminate
immediately prior to the consummation of such proposed action or at such
other time and subject to such other conditions as shall be determined by
the Committee.
7
<PAGE>
F. Issuances of Securities. 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 subject to Options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
G. Fractional Shares. No fractional shares shall be issued under the
-----------------
Plan and the optionee shall receive from the Company cash in lieu of such
fractional shares.
H. Adjustments. Upon the happening of any of the events described in
-----------
subparagraphs A, B or C above, the class and aggregate number of shares set
forth in paragraph 4 hereof that are subject to Stock Rights which
previously have been or subsequently may be granted under the Plan shall
also be appropriately adjusted to reflect the events described in such
subparagraphs. The Committee or the Successor Board shall determine the
specific adjustments to be made under this paragraph 13 and, subject to
paragraph 2, its determination shall be conclusive.
If any person or entity owning restricted Common Stock obtained by exercise
of a Stock Right made hereunder receives shares or securities or cash in
connection with a corporate transaction described in subparagraphs A, B or C
above as a result of owning such restricted Common Stock, such shares or
securities or cash shall be subject to all of the conditions and restrictions
applicable to the restricted Common Stock with respect to which such shares or
securities or cash were issued, unless otherwise determined by the Committee or
the Successor Board.
14. Means of Exercising Stock Rights. A Stock Right (or any part or
--------------------------------
installment thereof) shall be exercised by giving written notice to the Company
at its principal office address. Such notice shall identify the Stock Right
being exercised and specify the number of shares as to which such Stock Right is
being exercised, accompanied by full payment of the purchase price therefor
either (a) in United States dollars in cash or by check, or (b) at the
discretion of the Committee, through delivery of shares of Common Stock having a
fair market value equal as of the date of the exercise to the cash exercise
price of the Stock Right, or (c) at the discretion of the Committee, by delivery
of the grantee's personal recourse note bearing interest payable not less than
annually at no less than 100% of the lowest applicable Federal rate, as defined
in Section 1274(d) of the Code, or (d) at the discretion of the Committee, by
any combination of (a), (b) and (c) above. If the Committee exercises its
discretion to permit payment of the exercise price of an ISO by means of the
methods set forth in clauses (b), (c), or (d) of the preceding sentence, such
discretion shall be exercised in writing at the time of the grant of the ISO in
question. The holder of a Stock Right shall not have the rights of a
shareholder with respect to the shares covered by his Stock Right until the date
of issuance of a stock certificate to him for such shares. Except as expressly
provided above in paragraph 13 with respect to changes in capitalization and
stock dividends, no adjustment shall be made for
8
<PAGE>
dividends or similar rights for which the record date is before the date such
stock certificate is issued.
15. Term and Amendment of Plan. This Plan was originally adopted by the
--------------------------
Board and approved by the stockholders on September 28, 1990. The Plan shall
expire at the end of the day on September 27, 2000 (except as to Options
outstanding on that date). Subject to the provisions of paragraph 5 above,
Stock Rights may be granted under the Plan prior to the date of stockholder
approval of the Plan or any amendment thereto for which stockholder approval is
required under this paragraph 15. The Board may terminate or amend the Plan in
any respect at any time, except that, without the approval of the stockholders
obtained within twelve months before or after the Board adopts a resolution
authorizing any of the following actions: (a) the total number of shares that
may be issued under the Plan may not be increased (except by adjustment pursuant
to paragraph 13); (b) the provisions of paragraph 3 regarding eligibility for
grants of IS0s may not be modified; (c) the provisions of paragraph 6(B)
regarding the exercise price at which shares may be offered pursuant to ISOs may
not be modified (except by adjustment pursuant to paragraph 13); (d) the
expiration date of the Plan may not be extended; (e) the benefits accruing to
participants under the Plan may not be materially increased; and (f) the
requirements as to eligibility for participation in the Plan may not be
materially modified. In no event may action of the Board or stockholders alter
or impair the rights of a grantee, without his consent, under any Stock Right
previously granted to him.
16. Conversion of ISOs into Non-Qualified Options; Termination. The
----------------------------------------------------------
Committee, at the written request of any optionee, may in its discretion take
such actions as may be necessary to convert such optionee's ISOs (or any
installments or portions of installments thereof) that have not been exercised
on the date of conversion into Non-Qualified Options at any time prior to the
expiration of such ISOs, regardless of whether the optionee is an employee of
the Company or a Related Corporation at the time of such conversion. Such
actions may include, but not be limited to, extending the exercise period or
reducing the exercise price of the appropriate installments of such ISOs. At
the time of such conversion, the Committee (with the consent of the optionee)
may impose such conditions on the exercise of the resulting Non-Qualified
Options as the Committee in its discretion may determine, provided that such
conditions shall not be inconsistent with this Plan. Nothing in the Plan shall
be deemed to give any optionee the right to have such optionee's ISOs converted
into Non-Qualified Options, and no such conversion shall occur until and unless
the Committee takes appropriate action. The Committee, with the consent of the
optionee, may also terminate any portion of any ISO that has not been exercised
at the time of such termination.
17. Application of Funds. The proceeds received by the Company from the
--------------------
sale of shares pursuant to Options granted and Purchases authorized under the
Plan shall be used for general corporate purposes.
9
<PAGE>
18. Governmental Regulation. The Company's obligation to sell and deliver
-----------------------
shares of the Common Stock under this Plan is subject to the approval of any
governmental authority required in connection with the authorization, issuance
or sale of such shares.
19. Withholding of Additional Income Taxes. Upon the exercise of a Non-
--------------------------------------
Qualified Option, the grant of an Award, the making of a Purchase of Common
Stock for less than its fair market value, the making of a Disqualifying
Disposition (as defined in paragraph 20) or the vesting of restricted Common
Stock acquired on the exercise of a Stock Right hereunder, the Company, in
accordance with Section 3402(a) of the Code, may require the optionee, Award
recipient or purchaser to pay additional withholding taxes in respect of the
amount that is considered compensation includible in such person's gross income.
The Committee in its discretion may condition (i) the exercise of an Option,
(ii) the grant of an Award, (iii) the making of a Purchase of Common Stock for
less than its fair market value, or (iv) the vesting of restricted Common Stock
acquired by exercising a Stock Right, on the grantee's payment of such
additional withholding taxes.
20. Notice to Company of Disqualifying Disposition. Each employee who
----------------------------------------------
receives an ISO must agree to notify the Company in writing immediately after
the employee makes a Disqualifying Disposition of any Common Stock acquired
pursuant to the exercise of an ISO. A Disqualifying Disposition is any
disposition (including any sale) of such Common Stock before the later of (a)
two years after the date the employee was granted the ISO, or (b) one year after
the date the employee acquired Common Stock by exercising the ISO. If the
employee has died before such stock is sold, these holding period requirements
do not apply and no Disqualifying Disposition can occur thereafter.
21. Governing Law; Construction. The validity and construction of the
---------------------------
Plan and the instruments evidencing Stock Rights shall be governed by the laws
of the State of Delaware, or the laws of any jurisdiction in which the Company
or its successors in interest may be organized. In construing this Plan, the
singular shall include the plural and the masculine gender shall include the
feminine and neuter, unless the context otherwise requires.
22. Compliance with Rule 16b-3. The provisions of the Plan are intended
--------------------------
to comply in all respects with the provisions of Rule 16b-3 under the Securities
Exchange Act of 1934 and any amendments thereto, and, if the Plan shall not so
comply, whether on the date of adoption or by reason of any later amendment to
or interpretation of Rule 16b-3, the provisions of the Plan shall be deemed to
be automatically amended so as to bring them into full compliance with such
rule.
10
<PAGE>
EXHIBIT 5.1
February __, 1998
Ladies and Gentlemen:
I am the General Counsel of Total Renal Care Holdings, Inc., a
Delaware corporation (the "Company") and the holder of stock and options to
purchase stock granted under the Company's employee stock plans which in the
aggregate represent less than 1% of the Company's outstanding Common Stock. I
am delivering this opinion in connection with the registration under the
Securities Act of 1933, as amended (the "1933 Act"), of up to 1,382,421 shares
of the Common Stock, $0.001 par value per share (the "Shares") issuable upon the
exercise of options granted under the benefit plans of Renal Treatment Centers,
Inc., a Delaware corporation ("RTC"), in accordance with the terms of the
Agreement and Plan of Merger, dated November 18, 1997, by and among the Company,
Nevada Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
the Company, and RTC. This opinion is delivered in connection with that certain
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission") under the 1933
Act.
In rendering the opinion set forth herein, I have made such
investigations of fact and law, and examined such documents and instruments, or
copies thereof established to my satisfaction to be true and correct copies
thereof, as I have deemed necessary under the circumstances.
Based upon the foregoing and such other examination of law and fact as
I have deemed necessary, and in reliance thereon, I am of the opinion that the
Shares have been duly authorized and are validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to me under the caption "Legal
Matters" in the Prospectus which is a part of the Registration Statement. In
giving such consent, I do not thereby admit that I am in the category of persons
whose consent is required under Section 7 of the 1933 Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
/s/ Barry C. Cosgrove
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated February 13, 1997 appearing on page
F-1 of Total Renal Care Holdings, Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1996. We also hereby consent to the incorporation by
reference of our report on the Financial Statement Schedule, which appears on
page S-1 of such Annual Report on Form 10-K. We also hereby consent to
incorporation by reference in this Registration Statement of our report dated
February 28, 1996 on the Nephrology Services Business of Caremark International
Inc. for the years ended December 31, 1995 and 1994 and for the one month ended
December 31, 1993; of our report dated June 18, 1997 on the financial statements
of New West Dialysis Clinics, Inc. for the year ended December 31, 1996; for our
report dated November 20, 1997 on the combined financial statements of
Southfield Dialysis Facility, P.C., North Oakland Dialysis Facility, P.C.,
Macomb Kidney Center, P.C., and Novi Kidney Center, P.C. for the year ended
December 31, 1996; of our report dated December 12, 1997 on the financial
statements of Dialysis Care of North Carolina for the year ended December 31,
1996; and of our report dated December 18, 1997 on the financial statements of
the Renal Dialysis Business of The Rogosin Institute, Inc. for the year ended
December 31, 1996. These reports appear on pages F-2, F-13, F-24, F-35 and F-43,
respectively, of Total Renal Care Holdings, Inc.'s Current Report on Form 8-K
dated December 19, 1997.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Seattle, Washington
February 24, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
- --------------------------------------------------------------------------------
The Board of Directors
Total Renal Care Holdings, Inc.:
We consent to incorporation herein by reference of our reports dated July 8,
1994, relating to the consolidated statements of income, stockholders' equity,
and cash flows of Total Renal Care Holdings, Inc. and subsidiaries for the year
ended May 31, 1994, and the related financial statement schedule, which reports
appear in the December 31, 1996 annual report on Form 10-K of Total Renal Care
Holdings, Inc.
/s/ KPMG Peat Marwick LLP
-----------------------------
KPMG Peat Marwick LLP
Seattle, Washington
February 24, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 14, 1997, on the financial
statements of South Brooklyn Nephrology Center, Inc. (a Subchapter S
Corporation) for the years ended December 31, 1996 and 1995 which appears on
page F-1 of Total Renal Care Holdings, Inc.'s Current Report on Form 8-K dated
January 22, 1998.
/s/ MAIER, MARKEY & MENASHI LLP
MAIER MARKEY & MENASHI LLP
Larchmont, New York
February 24, 1998
