As filed with the Securities and Exchange Commission on October ___, 2001
Registration No. 333- _____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MATRIA HEALTHCARE, INC.
(Exact name of registrant as specified in its charter)
Delaware 58-2205984
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
(Address of principal executive offices) (Zip Code)
MATRIA HEALTHCARE, INC. 2001 STOCK INCENTIVE PLAN
(Full title of the plan)
------------------------
Roberta L. McCaw
Matria Healthcare, Inc.
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
770/767-8332
(Name, address and telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all
orders, notices and communications to:
Roberta L. McCaw
Matria Healthcare, Inc.
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
Telephone: (770) 767-8332
Facsimile: (770) 767-7769
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of each class of Amount to be Proposed maximum Maximum aggregate Amount of
securities to be registered registered(1) offering price per offering price(2) registration fee
share(2)
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Common Stock, $0.01 par value 250,000 shares $22.735 $5,683,750 $1,420.94
(together with associated common
stock purchase rights)
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
as amended (the "Securities Act"), this registration statement also
covers an indeterminate number of additional shares which may be
offered and issued to prevent dilution resulting from stock splits,
stock dividends or similar transactions as provided in the plans
described herein.
(2) Pursuant to Rule 457(h)(1) under the Securities Act, these figures are
based upon the average of the high and low prices of the Common Stock
on October ___, 2001, as reported in the Nasdaq National Market System,
and are used solely for the purpose of calculating the registration
fee.
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 (plan information and registrant
information and plan annual information) to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with the
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference.
Matria Healthcare, Inc. ("Registrant") hereby incorporates
by reference into this registration statement the following
documents:
(a) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2000, as filed with the Securities and
Exchange Commission (the "Commission") March 30, 2001;
(b) the Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 2001 and June 30, 2001, as
filed with the Commission May 14, 2001 and August 13, 2001,
respectively;
(c) the Registrant's Special Reports on Form 8-K for events on
June 15, 2001, July 3, 2001 and July 19, 2001, as filed with
the Commission; and
(d) the description of the Registrant's capital stock
contained in the Joint Proxy Statement/Prospectus of
Healthdyne, Inc. ("Healthdyne") and Tokos Medical Corporation
("Tokos"), predecessors of the Registrant, filed as part of
Registrant's Registration Statement No. 333-00781 on Form S-4
filed with the Commission February 7, 1996 (the "Joint Proxy
Statement"), as amended by Form 8A/A filed with the Commission
October 29, 2001, and as it may be amended by any amendment
or report filed subsequent to the date of this registration
statement for the purpose of updating such description.
In addition, all documents filed subsequent to the date of this
registration statement by the undersigned Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and prior to the filing of a post-effective amendment hereto
which either indicates that all shares of common stock offered hereby have been
sold or deregisters any shares of such common stock then remaining, shall also
be deemed to be incorporated by reference into this registration statement and
to be a part hereof from their respective dates of filing. Any statement in a
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 that also is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any statement contained in this
registration statement shall be deemed to be modified or susperseded to the
extent that a statement contained in a subsequently filed document which is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any 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 legality of the shares offered hereby is being passed upon for the
Registrant by Troutman Sanders LLP, Atlanta, Georgia. Carl E. Sanders, a
director of the Registrant and the Chairman of Troutman Sanders LLP, is the
beneficial owner of 22,062 shares of the Common Stock of the Registrant.
ITEM 6. Indemnification of Directors and Officers.
The General Corporation Law of the State of Delaware (the
"DGCL") permits a corporation to indemnify officers, directors, employees and
agents against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement if such person acted in good faith and in a manner
the person reasonably believed to be in, or not opposed to, the best interests
of the corporation, and with respect to any criminal actions, had no reasonable
cause to believe was unlawful. In the case of an action brought by or in the
right of a corporation, the corporation may indemnify a director, officer,
employee or agent of the corporation against expenses (including attorneys'
fees) actually and reasonably incurred by him or her if he or she 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 shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the corporation unless a court finds that, in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper. The DGCL
provides that a corporation may advance expenses of defense (upon receipt of a
written undertaking to reimburse the corporation if indemnification is not
appropriate) and must reimburse a successful defendant for expenses, including
attorney's fees, actually and reasonably incurred, and permits a corporation to
purchase and maintain liability insurance for its directors and officers.
The Registrant's Certificate of Incorporation provides that
Registrant shall, to the fullest extent permitted by law, indemnify its
directors and officers against any liability, losses or related expenses which
they may incur by reason of serving or having served as directors and officers
of Registrant. The Registrant's Certificate of Incorporation limits Registrant's
directors' liability for monetary damages to Registrant and its stockholders for
breaches of fiduciary duty to the fullest extent permitted under the DGCL. The
DGCL permits Delaware corporations to include in their certificate of
incorporation a provision eliminating or limiting director liability for
monetary damages arising from breaches of fiduciary duty. The only limitations
imposed under the statute are that the provision may not eliminate or limit a
director's liability (i) for breaches of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
involving intentional misconduct or known violations of law, (iii) for the
payment of unlawful dividends or unlawful stock purchases or redemptions or (iv)
for transactions in which the director received an improper personal benefit.
The Registrant's Bylaws provide that each person who is
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he or she is or was
a director or officer of Registrant, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan, will be indemnified by the corporation
to the fullest extent permitted by the DGCL, as the same exists or may hereafter
be amended, against all costs, charges, expenses, liabilities and losses
reasonably incurred or suffered by such person in connection therewith, and such
indemnification will continue as to a person who has ceased to be a director,
officer, employee or agent and will inure to the benefit or his or her heirs,
executors and administrators; provided, however, that Registrant will indemnify
any such person seeking indemnification in connection with a proceeding
initiated by such person only if such proceeding was authorized by Registrant's
Board of Directors. The right to indemnification is a contract right and
includes the right to be paid by Registrant the expenses incurred in defending
any such proceeding in advance of its final disposition; provided, however, that
if the DGCL so requires, the payment of such expenses incurred by a director or
officer in advance of the final disposition of a proceeding will be made only
upon delivery to Registrant of an undertaking, by or on behalf of such director
or officer, to repay all amounts so advanced if it will ultimately be determined
that such director or officer is not entitled to be indemnified. The Registrant
may provide indemnification to employees and agents of Registrant with the same
scope and effect as the foregoing indemnification of directors and officers.
The indemnification rights conferred by the Registrant's
Certificate of Incorporation and Bylaws are not exclusive of any other right to
which a person seeking indemnification may be entitled under any law, bylaw,
agreement, vote of stockholders or disinterested directors or otherwise.
Registrant maintains an insurance policy on behalf of its directors and officers
insuring against certain liabilities including liabilities arising under the
Securities Act.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
Exhibit
Number
4(a) Matria Healthcare, Inc. 2001 Stock Incentive Plan,
incorporated by reference to Exhibit A to the
Registrant's Definitive Proxy Statement filed with
the Commission April 26, 2001.
4(b) Amended and Restated Certificate of Incorporation
of the Registrant, incorporated by reference to
Appendix D of the Joint Proxy Statement/Prospectus
of Healthdyne and Tokos, filed as part of the
Registrant's Registration Statement No. 333-00781 on
Form S-4, filed with the Commission February 7, 1996.
4(c) Certificate of Amendment of Restated Certificate
of Incorporation of the Registrant, incorporated
by reference to Exhibit 3.4 to the Registrant's
Annual Report on Form 10-K for the year ended
December 31, 2000.
4(d) Amended and Restated Bylaws of the Registrant,
incorporated by reference to Exhibit 3 to the
Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2000.
4(e) Amended and Restated Rights Agreement dated April
27, 1999 between the Registrant and SunTrust
Bank, Atlanta, incorporated by reference to
Exhibit 4 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1999.
5 Opinion of Troutman Sanders LLP.
23(a) Consent of KPMG LLP.
23(b) Consent of Troutman Sanders LLP (contained in opinion
filed in Exhibit 5).
ITEM 9. Undertakings.
(a) Rule 415 offerings. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to
this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date
of the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than 20 percent
change in the maximum aggregate offering
price set forth in the "Calculation of
Registration Fee" table in the effective
registration statement.
(iii) To include any material information
with respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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.
(b) Filings incorporating subsequent Exchange Act documents by
reference. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Filing of registration statement on Form S-8. Insofar as
indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions
or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Marietta, State of Georgia, on October 23, 2001.
MATRIA HEALTHCARE, INC.
By:/s/ Parker H. Petit
--------------------
Parker H. Petit, Chairman of Board,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Parker H. Petit and George W.
Dunaway, 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 full power and
authority to do and to perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he might or would do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
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.
Signatures Title Date
Chairman of the Board,
/s/ Parker H. Petit President and Chief Executive October 23, 2001
----------------------- Officer, Director
Parker H. Petit (Principal Executive Officer)
/s/ Jeffrey D. Koepsell Chief Operating Officer, Executive October 23, 2001
----------------------- Vice President and Director
Jeffrey D. Koepsell
/s/ George W. Dunaway Vice President-Finance and Chief October 23, 2001
----------------------- Financial Officer (Principal
George W. Dunaway Financial Officer)
/s/ Larry N. Brownlee Corporate Controller (Principal October 23, 2001
----------------------- Accounting Officer)
Larry N. Brownlee
Director October __, 2001
----------------------
Richard F. Levy
/s/ Guy W. Millner Director October 23, 2001
----------------------
Guy W. Millner
Director October __, 2001
----------------------
Carl E. Sanders
/s/ Thomas S. Stribling Director October 23, 2001
-----------------------
Thomas S. Stribling
Director October __, 2001
------------------------
Jackie M. Ward
/s/ Donald W. Weber Director October 23, 2001
------------------------
Donald W. Weber
/s/ Morris S. Weeden Director October 23, 2001
-------------------------
Morris S. Weeden
/s/ Frederick P. Zuspan, M.D. Director October 23, 2001
-------------------------
Frederick P. Zuspan, M.D.
EXHIBIT INDEX
Exhibit
Number Description
4(a) Matria Healthcare, Inc. 2001 Stock Incentive Plan,
incorporated by reference to Exhibit A to the Registrant's
Definitive Proxy Statement filed with the Commission
April 26, 2001.
4(b) Amended and Restated Certificate of Incorporation of the
Registrant, incorporated by reference to Appendix D of the
Joint Proxy Statement/Prospectus of Healthdyne and Tokos,
filed as part of the Registrant's Registration Statement No.
333-00781 on Form S-4, filed with the Commission February 7,
1996.
4(c) Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant, incorporated by reference to
Exhibit 3.4 to the Registrant's Annual Report on Form 10-K for
the year ended December 31, 2000.
4(d) Amended and Restated Bylaws of the Registrant,
incorporated by reference to Exhibit 3 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000.
4(e) Amended and Restated Rights Agreement dated April 27, 1999
between the Registrant and SunTrust Bank Atlanta, incorporated
by reference to Exhibit 4 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1999.
5 Opinion of Troutman Sanders LLP.
23(a) Consent of KPMG LLP.
23(b) Consent of Troutman Sanders LLP (contained in opinion filed
in Exhibit 5).