-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, oal7QdtKfkA72iygGhOaRp4t+CTDnU+Tv+iFAi6U70LXbpcJw7qwVctL8+2RdTN8 E41c+lwUqLMmVaODaswQbg== 0000019411-95-000003.txt : 19950515 0000019411-95-000003.hdr.sgml : 19950515 ACCESSION NUMBER: 0000019411-95-000003 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950215 EFFECTIVENESS DATE: 19950306 SROS: AMEX FILER: COMPANY DATA: COMPANY CONFORMED NAME: CHARTER MEDICAL CORP CENTRAL INDEX KEY: 0000019411 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-HOSPITALS [8060] IRS NUMBER: 581076937 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-57729 FILM NUMBER: 95511780 BUSINESS ADDRESS: STREET 1: 577 MULBERRY ST STREET 2: PO BOX 209 CITY: MACON STATE: GA ZIP: 31298 BUSINESS PHONE: 9127421161 S-8 1 As filed with the Securities and Exchange Commission on February 15, 1995. Registration Statement No. 33- =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CHARTER MEDICAL CORPORATION (Exact name of registrant as specified in its charter) Delaware 58-1076937 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 3414 Peachtree Road, N.E., Suite 1400 Atlanta, Georgia 30326 (Address of principal executive offices) (Zip Code) CHARTER MEDICAL CORPORATION 1994 STOCK OPTION PLAN CHARTER MEDICAL CORPORATION 1994 EMPLOYEE STOCK PURCHASE PLAN CHARTER MEDICAL CORPORATION AMENDED DIRECTORS' STOCK OPTION PLAN CHARTER MEDICAL CORPORATION DIRECTORS' UNIT AWARD PLAN (Full title of the plans) Robert W. Miller King & Spalding 191 Peachtree Street Atlanta, Georgia 30303-1763 (Name and address of agent for service) (404) 572-4997 (Telephone number, including area code, of agent for service) Copies to: John R. Day Vice President-Controller Charter Medical Corporation 577 Mulberry Street Macon, Georgia 31298 __________________________________ CALCULATION OF REGISTRATION FEE (See next page) __________________________________ (Continued from previous page) CALCULATION OF REGISTRATION FEE =============================================================================== Proposed Proposed Title of maximum maximum securities Amount offering aggregate Amount of to be to be price offering registration registered registered per share price (1) fee Common Stock, 1,965,000 $28.312 $40,854,535 $14,088 par value $0.25 per share =============================================================================== (1) Shares of Common Stock being registered with respect to the 1994 Stock Option Plan consist of 988,000 shares having a weighted average exercise price of $23.538 per share and 312,000 shares for which the offering price is not known. Shares of Common Stock being registered with respect to the 1994 Employee Stock Purchase Plan consist of 85,115 shares having an exercise price of $21.144 per share and 514,885 shares for which the offering price is not known. Shares of Common Stock being registered with respect to the Amended Directors' Stock Option Plan consist of 25,000 shares having an exercise price of $22.875 per share and 25,000 shares for which the offering price is not known. The 15,000 shares of Common Stock being registered with respect to the Directors' Unit Award Plan have an offering price of $0.00 per share, as such shares are issuable upon settlement of vested units without payment of a purchase price per share. Pursuant to Rule 457(h)(1), the aggregate offering price of the 851,885 shares for which the offering price is not known has been calculated pursuant to Rule 457(c) on the basis of the average ($17.875 per share) of the high and low sales prices of the Common Stock on the American Stock Exchange on February 13, 1995. (2) This Registration Statement, pursuant to Rule 416(c), shall be deemed to register an indeterminate amount of interests under the Charter Medical Corporation 1994 Employee Stock Purchase Plan. Part II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents previously filed by Charter Medical Corporation (the "Registrant") with the Securities and Exchange Commission are hereby incorporated by reference into this Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the year ended September 30, 1994; (b) All reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") since September 30, 1994; and (c) The description of the Registrant's Common Stock, par value $0.25 per share, contained in the Registrant's registration statement on Form 8-A, effective on July 21, 1992 under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents filed by the Registrant subsequent to the date of this Registration Statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act and prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Inapplicable. Item 5. Interests of Named Experts and Counsel. Inapplicable. Item 6. Indemnification of Directors and Officers. The Registrant is a Delaware corporation. Section 145 of the Delaware General Corporation Law (the "DGCL") provides that a Delaware corporation has the power to indemnify its officers and directors in certain circumstances. Subsection (a) of Section 145 of the DGCL empowers a corporation to indemnify any director or officer, or former director or officer, who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of his service as director, officer, employee or agent of the corporation, or his service, at the corporation's request, as a director, officer, employee or agent of another corporation or enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action, suit or proceeding provided that such director or officer acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, provided that such director or officer had no reasonable cause to believe his conduct was unlawful. Subsection (b) of Section 145 empowers a corporation to indemnify any director or officer, or former director or officer, who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys' fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit provided that such director or officer acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such director or officer shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such director or officer is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Section 145 further provides that, to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) or (b) or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith; provided that indemnification provided for by Section 145 or granted pursuant thereto shall not be deemed exclusive of any other rights to which the indemnified party may be entitled; and empowers the corporation to purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under Section 145. Article VII of the Bylaws of the Registrant provides in substance that the Registrant shall indemnify directors and officers against all liability and related expenses incurred in connection with the affairs of the Registrant if: (a), in the case of actions not by or in the right of the Registrant, the director or officer acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, and (with respect to a criminal proceeding) had no reasonable cause to believe his conduct was unlawful; and (b), in the case of actions by or in the right of the Registrant, the director or officer acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, provided that no indemnification shall be made for a claim as to which the director or officer is adjudged liable for negligence or misconduct unless (and only to the extent that) an appropriate court determines that, in view of all the circumstances, such person is fairly and reasonably entitled to indemnity. In addition, Section 102(b)(7) of the DGCL permits Delaware corporations to include a provision in their certificates of incorporation eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provisions shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) for unlawful payment of dividends or other unlawful distributions, or (iv) for any transactions from which the director derived an improper personal benefit. Article Twelfth of the Registrant's Restated Certificate of Incorporation contains such a provision. The Registrant maintains Directors' and Officers' liability insurance with various insurance providers in the aggregate amount of $50,000,000. Item 7. Exemption from Registration Claimed. Inapplicable. Item 8. Exhibits. Exhibit Description 4.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3(a) to the Registrant's Annual Report on Form 10-K for the year ended September 30, 1992). 4.2 Bylaws of the Registrant, as amended (incorporated by reference to Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for the year ended September 30, 1994). 5 Opinion of King & Spalding regarding legality of shares being registered. 24.1 Consent of Independent Public Accountants. 24.2 Consent of King & Spalding (contained in opinion filed as Exhibit 5). 25 Powers of Attorney executed by certain directors or officers, or both, of the Registrant. 99.1 1994 Stock Option Plan (incorporated by reference to Exhibit 10(e) to the Registrant's Annual Report on Form 10-K for the year ended September 30, 1994). 99.2 1994 Employee Stock Purchase Plan. 99.3 Amended Directors' Stock Option Plan (incorporated by reference to Exhibit 10(d) to Registrant's Annual Report on Form 10-K for the year ended September 30, 1994). Exhibit Description 99.4 Directors' Unit Award Plan (incorporated by reference to Exhibit 10(i) of the Registrant's Registration Statement on Form S-4, No. 33-53701, effective September 20, 1994). Experts The consolidated financial statements and schedules of Charter Medical Corporation included in its Annual Report on Form 10-K for the year ended September 30, 1994 and incorporated by reference in this registration statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto and are incorporated by reference herein in reliance upon the authority of said firm as experts in giving said reports. Future financial statements of the Registrant and the reports thereon of Arthur Andersen LLP also will be incorporated by reference in this registration statement in reliance upon the authority of that firm as experts in giving those reports to the extent said firm has audited those financial statements and consented to the use of their reports thereon. Item 9. Undertakings. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3 or Form S-8, and 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 Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Charter Medical Corporation 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 Atlanta, State of Georgia, on the 14th day of February, 1995. CHARTER MEDICAL CORPORATION By: /s/ Lawrence W. Drinkard Lawrence W. Drinkard Executive Vice President - Finance Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Signature Title Date /s/ E. Mac Crawford * Chairman of the Board of February 14, 1995 E. Mac Crawford Directors, President, Chief Executive Officer (Principal Executive Officer) and Director /s/ Lawrence W. Drinkard Executive Vice President February 14, 1995 Lawrence W. Drinkard - Finance (Principal Financial Officer) and Director /s/ John R. Day Vice President-Controller February 14, 1995 John R. Day (Principal Accounting Officer) /s/ Edwin M. Banks * Director February 14, 1995 Edwin M. Banks /s/ Andre C. Dimitriadis * Director February 14, 1995 Andre C. Dimitriadis /s/ Raymond H. Kiefer * Director February 14, 1995 Raymond H. Kiefer /s/ Gerald L. McManis * Director February 14, 1995 Gerald L. McManis ____________________________ * By:/s/Lawrence W. Drinkard Lawrence W. Drinkard, Attorney-in-Fact EXHIBIT INDEX Sequential Exhibit Numbered No. Description of Exhibit Page 4.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference). 4.2 Bylaws of the Registrant, as amended (incorporated by reference) 5 Opinion of King & Spalding regarding legality of shares being registered. 24.1 Consent of Independent Auditors. 24.2 Consent of King & Spalding (contained in opinion filed as Exhibit 5). 25 Powers of Attorney executed by certain directors or officers, or both, of the Registrant. 99.1 1994 Stock Option Plan (incorporated by reference). 99.2 1994 Employee Stock Purchase Plan. 99.3 Amended Directors' Stock Option Plan (incorporated by reference). 99.4 Directors' Unit Award Plan (incorporated by reference) EX-5 2 EXHIBIT 5 February 14, 1995 Charter Medical Corporation Suite 1400 3414 Peachtree Road, N.E. Atlanta, GA 30326 Gentlemen: We have acted as counsel to Charter Medical Corporation, a Delaware corporation (the "Company"), in connection with the filing of a Registration Statement on Form S-8 that will be filed by the Company on or about February 14, 1995 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Registration Statement"), relating to shares of the Company's Common Stock to be issued upon exercise of options granted under the Company's 1994 Stock Option Plan, 1994 Employee Stock Purchase Plan and amended Directors' Stock Option Plan and upon settlement of awards under the Company's Directors' Unit Award Plan (together, the "Plans"). You have requested our opinion with respect to the legality of the shares of Common Stock to be issued upon exercise of options and settlements of awards granted under the Plans. We understand that our opinion will be attached as an Exhibit to the Registration Statement and that our opinion will be referred to in the Registration Statement. We consent to such use of our opinion. In rendering the opinion expressed in this letter, we have examined such documents as we have deemed appropriate, including the Plans, the forms of Stock Option Agreement, the Restated Certification of Incorporation of the Company, the By-laws of the Company, actions taken by the Board of Directors and stockholders of the Company in approving the Plans, and the Registration Statement. In our examination of documents, we have assumed, with your consent, that all documents submitted to us are authentic originals or, if submitted as photocopies, that they faithfully reproduce the originals, that all such documents have been or will be duly executed to the extent required and that representations and statements set forth in such documents are true and correct. Based upon the foregoing, we are of the opinion that the Plans have been duly adopted by all necessary corporate action on the part of the Company. We Charter Medical Corporation February 14, 1995 Page 2 are also of the opinion that theshares of the Company's Common Stock to be issued upon exercise of options and settlements of awards granted under the Plans, when options or awards are exercised or settled in accordance with the applicable provisions of the Plans and the related, applicable Stock Option Agreements, will be duly and validly issued shares of Common Stock of the Company and will be fully paid and nonassessable. Sincerely, KING & SPALDING By: Robert W. Miller RWM/dmh EX-23 3 EXHIBIT 24.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our report dated December 2, 1994 included in Charter Medical Corporation's Form 10-K for the year ended September 30, 1994 and to all references to our firm included in this Registration Statement. Atlanta, Georgia February 10, 1995 EX-24 4 EXHIBIT 25 POWER OF ATTORNEY The undersigned director or officer or both of Charter Medical Corporation (the "Company") hereby constitutes and appoints Lawrence W. Drinkard and John R. Day his true and lawful attorneys and agents, each with full power to act without the other and each of said attorneys having full power of substitution and resubstitution, to do any and all acts and things and to execute in his name, place or stead in his capacity as an officer or director or both of the company, any and all instruments which they may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended (the "Act") and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing under the Act of all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses, as may be necessary or desirable in connection with the registration of shares of the Company's Common Stock to be issued upon exercise of options granted under the Company's 1994 Stock Option Plan, 1994 Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and settlements of awards under the Company's Directors' Unit Award Plan, including specifically, but without limiting the generality of the foregoing, the power and authority to sign the name of the undersigned in his capacity as an officer or director or both of the Company to all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses. IN WITNESS WHEREOF, the undersigned director or officer or both of the Company has executed this instrument on the 31st day of January, 1995. /s/ E. Mac Crawford E. Mac Crawford POWER OF ATTORNEY The undersigned director or officer or both of Charter Medical Corporation (the "Company") hereby constitutes and appoints Lawrence W. Drinkard and John R. Day his true and lawful attorneys and agents, each with full power to act without the other and each of said attorneys having full power of substitution and resubstitution, to do any and all acts and things and to execute in his name, place or stead in his capacity as an officer or director or both of the company, any and all instruments which they may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended (the "Act") and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing under the Act of all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses, as may be necessary or desirable in connection with the registration of shares of the Company's Common Stock to be issued upon exercise of options granted under the Company's 1994 Stock Option Plan, 1994 Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and settlements of awards under the Company's Directors' Unit Award Plan, including specifically, but without limiting the generality of the foregoing, the power and authority to sign the name of the undersigned in his capacity as an officer or director or both of the Company to all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses. IN WITNESS WHEREOF, the undersigned director or officer or both of the Company has executed this instrument on the 14th day of February, 1995. /s/ Edwin M. Banks Edwin M. Banks POWER OF ATTORNEY The undersigned director or officer or both of Charter Medical Corporation (the "Company") hereby constitutes and appoints Lawrence W. Drinkard and John R. Day his true and lawful attorneys and agents, each with full power to act without the other and each of said attorneys having full power of substitution and resubstitution, to do any and all acts and things and to execute in his name, place or stead in his capacity as an officer or director or both of the company, any and all instruments which they may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended (the "Act") and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing under the Act of all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses, as may be necessary or desirable in connection with the registration of shares of the Company's Common Stock to be issued upon exercise of options granted under the Company's 1994 Stock Option Plan, 1994 Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and settlements of awards under the Company's Directors' Unit Award Plan, including specifically, but without limiting the generality of the foregoing, the power and authority to sign the name of the undersigned in his capacity as an officer or director or both of the Company to all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses. IN WITNESS WHEREOF, the undersigned director or officer or both of the Company has executed this instrument on the 14th day of February, 1995. /s/ Andre C. Dimitriadis Andre C. Dimitriadis POWER OF ATTORNEY The undersigned director or officer or both of Charter Medical Corporation (the "Company") hereby constitutes and appoints Lawrence W. Drinkard and John R. Day his true and lawful attorneys and agents, each with full power to act without the other and each of said attorneys having full power of substitution and resubstitution, to do any and all acts and things and to execute in his name, place or stead in his capacity as an officer or director or both of the company, any and all instruments which they may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended (the "Act") and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing under the Act of all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses, as may be necessary or desirable in connection with the registration of shares of the Company's Common Stock to be issued upon exercise of options granted under the Company's 1994 Stock Option Plan, 1994 Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and settlements of awards under the Company's Directors' Unit Award Plan, including specifically, but without limiting the generality of the foregoing, the power and authority to sign the name of the undersigned in his capacity as an officer or director or both of the Company to all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses. IN WITNESS WHEREOF, the undersigned director or officer or both of the Company has executed this instrument on the 31st day of January, 1995. /s/ Raymond H. Kiefer Raymond H. Kiefer POWER OF ATTORNEY The undersigned director or officer or both of Charter Medical Corporation (the "Company") hereby constitutes and appoints Lawrence W. Drinkard and John R. Day his true and lawful attorneys and agents, each with full power to act without the other and each of said attorneys having full power of substitution and resubstitution, to do any and all acts and things and to execute in his name, place or stead in his capacity as an officer or director or both of the company, any and all instruments which they may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, as amended (the "Act") and any rules, regulations and requirements of the Securities and Exchange Commission in respect thereof, in connection with the filing under the Act of all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses, as may be necessary or desirable in connection with the registration of shares of the Company's Common Stock to be issued upon exercise of options granted under the Company's 1994 Stock Option Plan, 1994 Employee Stock Purchase Plan, and Amended Directors' Stock Option Plan and settlements of awards under the Company's Directors' Unit Award Plan, including specifically, but without limiting the generality of the foregoing, the power and authority to sign the name of the undersigned in his capacity as an officer or director or both of the Company to all such registration statements, amendments, post-effective amendments or supplements thereto, and any new or revised prospectuses. IN WITNESS WHEREOF, the undersigned director or officer or both of the Company has executed this instrument on the 29th day of January, 1995. /s/ Gerald L. McManis Gerald L. McManis EX-99 5 EXHIBIT 99.2 CHARTER MEDICAL CORPORATION 1994 EMPLOYEE STOCK PURCHASE PLAN 1. Purpose. The purpose of the Charter Medical Corporation 1994 Employee Stock Purchase Plan, (the "Plan"), is to provide employees of Charter Medical Corporation (the "Company") and its subsidiary companies with an opportunity to be compensated through the benefits of stock ownership and to acquire an interest in the Company through the purchase of Common Stock of the Company. It is the intention of the Company to have the Plan qualify as an "employee stock purchase plan" under Section 423 of the Internal Revenue Code of 1986 (the "Code"). The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements of that section of the Code. 2. Definitions. (a) "Base Pay" means the compensation payable to an employee by the Company or a designated subsidiary (as defined in Code Section 424(f)) (a "subsidiary") calculated at that employee's base salary or standard hourly rate of compensation, plus overtime, commissions, and shift differential, but excluding incentive bonus compensation and compensation payable under any deferred compensation or other fringe benefit plan. (b) "Employee" means any person who is customarily employed for more than 20 hours per week, by the Company or by any subsidiary of the Company designated from time to time by the Committee (as defined in Section 13). 3. Eligibility. (a) Any Employee who shall be employed on or before 90 days preceding the Offering Date of an Offering Period shall be eligible to participate in the Plan for such Offering Period except that no Officer of the Company can participate in the Plan other than for participation in an Offering Period that begins prior to such person's election as an Officer. The term "Officer" shall mean the position of Assistant Vice President and officer positions that are senior to the position of Assistant Vice President. (b) Any provision of the Plan to the contrary notwithstanding, no Employee shall be granted an option: (i) If, immediately after the grant such Employee would own shares, and/or hold outstanding options to purchase stock, possessing 5% or more of the total combined voting power or value of all classes of shares of the Company or of any subsidiary of the Company; or (ii) Which permits his rights to purchase shares under all employee stock purchase plans of the Company and its subsidiaries to accrue at a rate which exceeds $25,000 of the fair market value of the shares (determined at the time such option is granted) for each calendar year in which such stock option is outstanding at any time. 4. Offering Periods. The Plan will have three Offering Periods of not less than six months nor more than twelve months duration each, the first of which shall not begin before April 1, 1994, and the last of which shall end not later than March 31, 1997. The beginning date (the "Offering Date") and the ending date (the "Termination Date") of each Offering Period shall be set in advance of each Offering Period by the Committee (as defined in Section 13). 5. Participation. An eligible Employee may become a participant for an Offering Period only by completing an election notice provided by the Company and filing it with the designated representative of the Company no later than the date specified by the Company in the election notice form. Payroll deductions for a participant with respect to an Offering Period shall commence with the first payroll period beginning on or after the Offering Date, and shall end with the last payroll period ending on or before the Termination Date, unless sooner terminated by the participant as provided in Section 10. All Employees granted options under the Plan shall have the same rights and privileges, except that the amount of stock which may be purchased under such option may vary in a uniform manner as described in Section 7. 6. Method of Payment. Payments for shares under the Plan may be made only by payroll deductions, as follows: (a) If a participant wishes to participate in the Plan, then at the time he files his election notice he shall elect to have deductions made from his Base Pay on each payday during the time he is a participant at a rate, whether expressed in dollars or as a percentage, not to exceed 10% of his annualized Base Pay as of the Offering Date. (b) All payroll deductions made for a participant shall be credited to his account under the Plan. A participant may not make any separate cash payment into such account. A participant's account shall be no more than a bookkeeping account maintained by the Company, and neither the Company nor any subsidiary shall be obligated to segregate or hold in trust or escrow any funds in a participant's account. (c) A participant may discontinue his participation in the Plan as provided in Section 10, but no other change can be made and, specifically, a participant may not alter the rate of his payroll deductions. 7. Granting of Option. (a) On the Offering Date for each Offering Period, a participant shall be granted an option for a fixed and determinable maximum number of shares according to the following procedure: Step 1--Calculate the amount elected by the participant to be withheld or paid for participation in the Plan on the Offering Date based on his annualized Base Pay on the Offering Date and the number of pay periods in the Offering Period; Step 2--Determine the figure which represents 85% of the fair market value of a share on the Offering Date, as provided in Section 7(b); Step 3--Divide the amount determined in Step 1 by the figure determined in Step 2 and round down the quotient to the nearest whole number. This final figure is the fixed maximum number of shares for which the participant shall be granted, on the Offering Date, an option to purchase, subject to the adjustments provided for in Sections 12 and 17. (b) The option price per share of shares purchased with payroll deductions for a participant will be 85% of the mean between the high and low sales prices of the Common Stock on the American Stock Exchange on the Offering Date or, if no shares are traded on such exchange on that date, such price on the next preceding trading day on which the Common Stock was traded. 8. Exercise of Option. Unless a participant gives written notice of withdrawal pursuant to Section 10(a) before the last business day in an Offering Period or a participant's employment terminates on or prior to the Termination Date of an Offering Period, his option for the purchase of shares during an Offering Period with payroll deductions made during the Offering Period will be exercised automatically for him on the Termination Date of that Offering Period. The automatic exercise shall, subject to Sections 12 and 17, be for the purchase of the maximum number of full shares subject to his option which the sum of payroll deductions credited to the participant's account on the Termination Date can purchase at the option price. 9. Delivery. As promptly as practicable after the end of an Offering Period, the Company will deliver to each participant the shares purchased upon the exercise of the option together with a cash payment equal to the balance without interest of any payroll deductions credited to his account which was not used for the purchase of shares. 10. Withdrawal. (a) A participant may withdraw payroll deductions credited to his account under the Plan at any time by giving written notice to the representative of the Company designated on the election notice form. All of the participant's payroll deductions credited to his account will be paid to him promptly after receipt of his notice of withdrawal, and no further deductions will be made from his pay during that Offering Period. (b) A participant's withdrawal will not have any effect upon his eligibility to participate in any similar plan which may hereafter be adopted by the Company or in any subsequent Offering Period. (c) Upon termination of the participant's employment during an Offering Period during an Offering Period for any reason, including death or retirement, the payroll deductions credited to his account for such period will be returned to him or, in the case of his death, to the person or persons entitled thereto under Section 14. 11. No Interest. No interest shall be accrued or payable with respect to amounts in a participant's account. 12. Stock. (a) The shares of Common Stock to be sold to participants under the Plan may, at the election of the Company, be either treasury shares or shares originally issued for such purpose. The maximum number of shares which shall be made available for sale under the Plan shall be 600,000 shares and the maximum number of shares available for sale in each Offering Period shall be 300,000, except that the maximum number of shares offered in the third Offering Period shall not exceed the then remaining number of shares available under the Plan and subject in each case to adjustment upon changes in capitalization of the Company as provided in Section 17. If the total number of shares for which options are to be exercised for an Offering Period in accordance with Section 8 exceeds the number of shares then available under the Plan for such Offering Period, the Company shall make a prorata allocation of the shares available based on a fraction, the numerator of which shall be the number of shares with respect to which a participant has an option to purchase for an Offering Period and the denominator of which shall be the number of shares available for purchase, with rounding down for each participant to the nearest whole number. (b) A participant will have no interest in shares covered by an option until such option has been exercised. (c) Subject to the provisions of Section 14, shares to be delivered to a participant under the Plan will be registered only in the name of the participant. 13. Administration. The Plan shall be administered by a Committee (the "Committee") consisting of not less than three members who shall be appointed by the Chief Executive Officer of the Company. Each member of the Committee shall be either a director, an officer, or an employee of the Company. The Committee shall be vested with full authority to make, administer, and interpret such rules and regulations as it deems necessary to administer the Plan, and any determination, decision, or action of the Committee in connection with the construction, interpretation, administration, or application of the Plan shall be final, conclusive, and binding upon all participants and all persons claiming under or through any participant. 14. Designation of Beneficiary. A participant may file a written designation of a beneficiary who is to receive any shares or cash to the participant's credit under the Plan in the event of such participant's death before, on, or after the Termination Date but prior to the delivery to the participant of shares and, if applicable, cash. Such designation of beneficiary may be changed by the participant at any time by written notice. Upon the death of a participant and upon receipt by the Company of proof of the identity and existence at the participant's death of a beneficiary validly designated by him under the Plan, the Company shall deliver such shares or cash to such beneficiary. In the event of the death of a participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such participant's death, the Company shall deliver such shares or cash to the executor or administrator of the estate of the participant, or if no such executor or administrator has been appointed (to the knowledge of the Company) the Company, in its discretion, may deliver such shares or cash to the spouse or to any one or more dependents or relatives of the participant; or, if no spouse, dependent, or relative is known to the Company, then to such other person as the Company may designate. No designated beneficiary shall, prior to the death of the participant by whom he has been designated, acquire any interest in the shares or cash credited to the participant under the Plan. 15. Transferability. Neither payroll deductions credited to a participant's account nor any rights with regard to the exercise of an option or to receive shares under the Plan may be assigned, transferred, pledged, or otherwise disposed of in any way by the participant. Any such attempted assignment, transfer, pledge, or other disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Section 10. 16. Use of Funds. All payroll deductions received or held by the Company under the Plan may be used by the Company for any corporate purpose. 17. Adjustments Upon Changes in Capitalization. In the event that the outstanding shares of Common Stock of the Company are hereafter increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of a recapitalization, reclassification, stock split, combination of shares, or dividend payable in shares of Common Stock, an appropriate adjustment shall be made by the Committee to the number and kind of shares as to which outstanding options shall be exercisable and to the option price. No fractional shares shall be issued or optioned in making the foregoing adjustments. All adjustments made by the Committee under this paragraph shall be conclusive and binding on all participants and all persons claiming under or through any participant. Subject to any required action by the stockholders, if the Company shall be a party to any reorganization involving merger, consolidation, acquisition of the stock or acquisition of the assets of the Company, the Committee in its discretion may declare (a) that all options granted hereunder are to be terminated after giving at least ten days' notice to holders of outstanding options, or (b) that any option granted hereunder shall pertain to and apply with appropriate adjustment as determined by the Committee to the securities of the resulting corporation to which a holder of the number of shares of Common Stock subject to the option would have been entitled. The adoption of a plan of dissolution or liquidation by the Board of Directors and stockholders of the Company shall cause every option outstanding hereunder to terminate on the fifteenth day thereafter, except that, in the event of the adoption of a plan of dissolution or liquidation in connection with a reorganization as provided in the preceding sentence, options outstanding hereunder shall be governed by and shall be subject to the provisions of the preceding sentence. Any issue by the Company of stock of any class, or securities convertible into shares of stock of any class, shall not affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Common Stock subject to any option, except as specifically provided otherwise in this Section 17. The grant of an option pursuant to the Plan shall not affect in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge or to consolidate or to dissolve, liquidate or sell, or transfer all or any part of its business or assets. 18. Amendment or Termination. The Board of Directors of the Company may at any time terminate or amend the Plan. No such termination can affect options previously granted and no amendment can make any change in any option theretofore granted which would adversely affect the rights of any participant. No amendment can be made without prior approval of the stockholders of the Company if such amendment would: (a) Require the sale of more shares than are authorized under Section 12; or (b) Permit payroll deductions or cash payments at a rate in excess of 10% of a participant's Base Pay. 19. Notices. All notices or other communications by a participant to the Company under or in connection with the Plan shall not be deemed to have been duly given until actually received by the representative of the Company designated on the election notice form provided by Section 5. -----END PRIVACY-ENHANCED MESSAGE-----