As filed with the Securities and Exchange Commission on June 20, 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)
MARKETRING.COM, INC. 1999 STOCK OPTION
AND STOCK APPRECIATION RIGHTS PLAN (1)
(Full title of the plan)
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ROBERTA L. MCCAW
MATRIA HEALTHCARE, INC.
1850 PARKWAY PLACE, 12TH FLOOR
MARIETTA, GEORGIA 30067
(770) 767-8332
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(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 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 Amount of
securities to be registered registered(1)(2) offering price per aggregate offering registration fee
share(3) price(3)
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Common Stock, $0.01 par value
(together with associated common 27,383 shares $34.046 $381,347.76 $35.08
stock purchase rights)
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(1) The MarketRing.com, Inc. 1999 Stock Option and Stock Appreciation
Rights Plan, as amended by Amendment No. 1 to 1999 Stock Option and
Stock Appreciation Rights Plan (the "Plan"), and outstanding options
granted thereunder, have been assumed by Matria Healthcare, Inc. (the
"Registrant") pursuant to the Agreement and Plan of Merger by and
among the Registrant, MRDC Acquisition Corp. and MarketRing.com, Inc.
dated May 30, 2002. This registration statement covers shares of the
Registrant's common stock (and associated common stock purchase
rights) issuable upon exercise of the assumed options under the Plan.
(2) 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 Plan
described herein.
(3) Pursuant to Rule 457(h)(1) under the Securities Act, these figures are
based upon the prices at which outstanding options under the Plan
assumed by Registrant may be exercised.
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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, 2001, as filed with the Securities and
Exchange Commission (the "Commission") March 29, 2002;
(b) the Registrant's Amended Annual Report on Form 10-K/A for the
fiscal year ended December 31, 2001, as filed with the Commission
April 30, 2002;
(c) the Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2002, as filed with the Commission May 14,
2002;
(d) the Registrant's Current Report on Form 8-K, as amended by
Form 8-K/A, as filed with the Commission on April 29, 2002;
(e) the Registrant's Current Report on Form 8-K as filed with the
Commission on April 30, 2002, and
(f) the description of the Registrant's capital stock contained
in the Joint Proxy Statement/Prospectus of Healthdyne, Inc. and Tokos
Medical Corporation, 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, 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
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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 22,625 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
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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 of 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.
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Exhibit
Number
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4(a) Restated Certificate of Incorporation, incorporated
by reference to Exhibit 3.1 to the Matria Annual
Report on Form 10-K for the year ended December 31,
1995, Commission File No. 20619.
4(b) Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant dated December 5,
2000, incorporated by reference to Exhibit 3.4 to
the Matria Annual Report on Form 10-K for the year
ended December 31, 2000.
4(c) 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(d) 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.
4(e) Amendment No. 1 to Amended and Restated Rights
Agreement, dated as of October 5, 2001, between
Matria and Sun Trust Bank Atlanta, incorporated by
reference to Exhibit 4(b) to the Matria Form 8-K/A
dated October 29, 2001.
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).
24 Power of Attorney (included in signature page of
this registration statement).
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering. 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
end of the
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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
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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.
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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 June 14, 2002.
MATRIA HEALTHCARE, INC.
By: /s/ Parker H. Petit
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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 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
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Chairman of the Board, Chief June 14, 2002
Executive Officer, and President
/s/ Parker H. Petit (Principal Executive Officer)
-----------------------------------
Parker H. Petit
Chief Operating Officer, June 13, 2002
Executive Vice President
/s/ Jeffrey D. Koepsell and Director
-----------------------------------
Jeffrey D. Koepsell
Corporate Controller June 13, 2002
(Principal Accounting
/s/ Larry N. Brownlee Officer)
-----------------------------------
Larry N. Brownlee
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Signatures Title Date
---------- ----- -----
Vice President-Finance and Chief June 13, 2002
Financial Officer (Principal
/s/ George W. Dunaway Financial Officer)
-----------------------------------
George W. Dunaway
/s/ Guy W. Milner Director June 13, 2002
-----------------------------------
Guy W. Milner
/s/ Carl E. Sanders Director June 13, 2002
-----------------------------------
Carl E. Sanders
Director June __, 2002
-----------------------------------
Thomas S. Stribling
/s/ Jacquelyn M. Ward Director June 14, 2002
-----------------------------------
Jacquelyn M. Ward
/s/ Donald W. Weber Director June 13, 2002
-----------------------------------
Donald W. Weber
Director June __, 2002
-----------------------------------
Morris S. Weeden
/s/ Frederick P. Zuspan, M.D. Director June 16, 2002
-----------------------------------
Frederick P. Zuspan, M.D.
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EXHIBIT INDEX
Exhibit
Number Description
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4(a) Restated Certificate of Incorporation, incorporated by
reference to Exhibit 3.1 to the Matria Annual Report on Form
10-K for the year ended December 31, 1995, Commission File
No. 20619.
4(b) Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant dated December 5, 2000,
incorporated by reference to Exhibit 3.4 to the Matria Annual
Report on Form 10-K for the year ended December 31, 2000.
4(c) 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(d) 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.
4(e) Amendment No. 1 to Amended and Restated Rights Agreement,
dated as of October 5, 2001, between Matria and Sun Trust
Bank Atlanta, incorporated by reference to Exhibit 4(b) to
the Matria Form 8-K/A dated October 29, 2001.
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).
24 Power of Attorney (included in signature page of this
registration statement).
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