As filed with the Securities and Exchange Commission on November 4, 2002
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 issuer 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. 2002 STOCK INCENTIVE PLAN
MATRIA HEALTHCARE, INC. 2002 STOCK PURCHASE PLAN
(Full title of the plan)
------------------------
Roberta L. McCaw
Matria Healthcare, Inc.
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
--------------
(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 375,000 shares $8.77 $3,288,750 $302.57
(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 __, 2002, 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, as amended by Form 10-K/A
Amendment No. 1, for the fiscal year ended December 31, 2001, as filed with
the Securities and Exchange Commission (the "Commission") March 29, 2002;
(b) the Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2002 and June 30, 2002, as filed with the Commission May
14, 2002 and August 14, 2002, respectively;
(c) the Registrant's Current Report on Form 8-K, as amended by Form 8-K/A,
dated April 29, 2002;
(d) the Registrant's Current Reports on Form 8-K as filed with the Commission
on April 30, 2002, September 4, 2002, and October 8, 2002, respectively;
and
(e) 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 amendmentor 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 superseded 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 22,946 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
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4(a) Matria Healthcare, Inc. 2002 Stock Incentive Plan,
incorporated by reference to Appendix C to the Registrant's
Definitive Proxy Statement filed with the Commission August
23, 2002.
4(b) Matria Healthcare, Inc. 2002 Stock Purchase Plan, incorporated
by reference to Appendix D to the Registrant's Definitive
Proxy Statement filed with the Commission August 23, 2002.
4(c) 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(d) 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(e) 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(f) 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 31, 2002.
MATRIA HEALTHCARE, INC.
By:/s/ Parker H. Petit
Parker H. Petit
Chairman of the 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 Stephen M.
Mengert, 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
/s/ Parker H. Petit Chairman of the Board, October 31, 2002
---------------------- President and Chief
Parker H. Petit Executive Officer
(Principal Executive
Officer)
/s/ Jeffrey D. Koepsell Chief Operating Officer, October 31, 2002
----------------------- Executive Vice President
Jeffrey D. Koepsell and Director
/s/ Stephen M. Mengert Vice President-Finance October 31, 2002
----------------------- and Chief Financial Officer
Stephen M. Mengert (Principal Financial Officer)
/s/ Larry N. Brownlee Corporate Controller October 31, 2002
----------------------- (Principal Accounting Officer)
Larry N. Brownlee
/s/ Guy W. Millner Director October 31, 2002
-----------------------
Guy W. Millner
/s/ Carl E. Sanders Director October 31, 2002
-----------------------
Carl E. Sanders
Director October __, 2002
-----------------------
Thomas S. Stribling
/s/ Donald W. Weber Director October 31, 2002
-----------------------
Donald W. Weber
/s/ Morris S. Weeden Director October 31, 2002
-----------------------
Morris S. Weeden
/s/ Frederick P. Zuspan, M.D. Director October 31, 2002
-----------------------------
Frederick P. Zuspan, M.D.
EXHIBIT INDEX
Exhibit
Number Description
4(a) Matria Healthcare, Inc. 2002 Stock Incentive Plan,
incorporated by reference to Appendix C to the Registrant's
Definitive Proxy Statement filed with the Commission August
23, 2002.
4(b) Matria Healthcare, Inc. 2002 Stock Purchase Plan, incorporated
by reference to Appendix D to the Registrant's Definitive
Proxy Statement filed with the Commission August 23, 2002.
4(c) 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(d) 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(e) 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(f) 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).