<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 17, 1996.
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HEALTHDYNE INFORMATION ENTERPRISES, INC.
----------------------------------------
(Exact name of registrant as specified in its charter)
GEORGIA 58-2112366
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1850 PARKWAY PLACE, SUITE 1100, MARIETTA, GEORGIA 30067
-------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
HEALTHDYNE INFORMATION ENTERPRISES, INC.
STOCK OPTION PLAN I
------------------------------------------
(Full title of the plan)
JOSEPH G. BLESER
VICE PRESIDENT-FINANCE
HEALTHDYNE INFORMATION ENTERPRISES, INC.
1850 PARKWAY PLACE, SUITE 1100
MARIETTA, GEORGIA 30067
------------------------------------------
(Name and address of agent for service)
(770) 423-8450
------------------------------------------
(Telephone number, including area code, of agent for service)
- -------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
REGISTERED REGISTERED(1) OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION FEE
SHARE(2) PRICE(2)
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share (together with 930,000 shares $5.125 $4,766,250 $1,644
associated preferred stock
purchase rights)
==========================================================================================================================
</TABLE>
(1) 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 Healthdyne Information Enterprises, Inc. Stock Option Plan I.
(2) Estimated solely for the purpose of calculating the
registration fee pursuant to Rule 457 under the Securities Act of 1933, as
amended, on the basis of the average of the high and low prices of the Common
Stock on July 15, 1996 as reported on the Nasdaq SmallCap Market.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Healthdyne Information Enterprises, Inc. (the "Registrant") hereby
incorporates by reference into this registration statement the
following documents:
(a) The Registrants's Annual Report on Form 10-K for the fiscal
year ended December 31, 1995;
(b) All other reports filed by the Registrant pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"1934 Act"), since the end of the fiscal year covered by the annual
report referred to in (a) above; and
(c) The description of the Registrant's Common Stock, par value
$.01 per share, and the description of the Preferred Stock Purchase
Rights associated with the Common Stock, as contained in the
Registrant's Registration Statements on Form 8-A filed pursuant to
Section 12(g) of the 1934 Act, including in each case any amendments
or reports filed for the purpose of updating such descriptions.
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 1934 Act prior to the filing of a post-effective amendment
hereto which indicates that all shares of Common Stock offered hereby have been
sold or which deregisters any shares of such Common Stock then remaining
unsold, shall also be deemed to be incorporated by reference in this
registration statement and to be a part hereof from their respective dates of
filing. Any statement contained 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 or
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
partner at Troutman
II-2
<PAGE> 3
Sanders LLP, is a director of the Registrant and the beneficial owner of 92,500
shares of the Common Stock of the Registrant as of May 31, 1996.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Georgia Business Corporation Code, the Registrant has broad
powers to indemnify its directors and officers against liabilities they may
incur in such capacities, including liabilities under the Securities Act. The
Registrant's By-Laws provide that the Registrant will indemnify its directors
and officers to the fullest extent permitted by law.
In addition, the Registrant's Articles of Incorporation, as amended,
provide that, pursuant to Georgia law, its directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty of care to the
Registrant and its shareholders. This provision in the Articles of
Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Georgia law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Registrant for appropriations of business opportunities
of the Registrant, acts or omissions involving international misconduct or a
knowing violation of law, actions leading to improper personal benefit to the
director, and payment of dividends or approval of stock repurchases or
redemptions that are unlawful under Georgia law. The provision also does not
affect a director's responsibilities under any other law, such as the federal
securities laws or state or federal environmental laws.
At present, there is no pending litigation or proceeding involving a
director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following Exhibits are filed as part of this registration
statement, including those incorporated by reference to previous filings as
indicated:
4(a) Rights Agreement dated October 23, 1995 between the Registrant
and Suntrust Bank (filed as Exhibit 4 to Amendment No. 1 to
the Registrant's Form S-1 (Registration No. 33-96478) (the
"Form S-1"), and incorporated herein by reference)
4(b) Articles of Incorporation, as amended, of the Registrant
4(c) Articles of Amendment dated August 30, 1995 to Articles of
Incorporation
4(d) Articles of Amendment dated October 31, 1995 to Articles of
Incorporation
II-3
<PAGE> 4
4(e) By-Laws of the Registrant (filed as Exhibit 3.2 to Amendment
No. 1 to the Form S-1 and incorporated herein by reference)
5 Opinion of Troutman Sanders LLP
23(a) Consent of KPMG Peat Marwick 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 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. 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 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.
II-4
<PAGE> 5
(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 of
1933, each filing of the Registrant's annual report pursuant to
Section 13(a) or 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) Filing of registration statement on Form S-8. 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.
II-5
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Marietta, State of Georgia, on July 17, 1996.
HEALTHDYNE INFORMATION ENTERPRISES, INC.
By: /s/ Joseph G. Bleser
------------------------------------
Joseph G. Bleser
Vice President-Finance
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph G. Bleser his true and lawful
attorney-in-fact and agent, 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 attorney-in-fact and
agent 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 attorney-in-fact and agent, or his
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 indicated below and as of the date indicated above:
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Parker H. Petit Chairman of the Board of Directors
-------------------------------------------
Parker H. Petit
/s/ H. Darrell Young Director, President and Chief Executive Officer
------------------------------------------- (Principal Executive Officer)
H. Darrell Young
</TABLE>
II-6
<PAGE> 7
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Joseph G. Bleser Vice President-Finance, Chief Financial
----------------------------------------- Officer, Treasurer and Secretary
Joseph G. Bleser (Principal Financial Officer; Principal
Accounting Officer)
/s/ J. Terry Dewberry Director
-----------------------------------------
J. Terry Dewberry
/s/ William J. Gresham, Jr. Director
-----------------------------------------
William J. Gresham, Jr.
----------------------------------------- Director
Charles R. Hatcher, Jr.
/s/ John W. Lawless Director
-----------------------------------------
John W. Lawless
/s/ Carl E. Sanders Director
-----------------------------------------
Carl E. Sanders
/s/ Donald W. Weber Director
-----------------------------------------
Donald W. Weber
</TABLE>
II-7
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
PAGE NO. IN MANUALLY
EXHIBIT NO. DESCRIPTION SIGNED ORIGINAL
------- --- ----------- ------ --------
<S> <C>
4(a) Rights Agreement dated October 23, 1995 between the
Registrant and Suntrust Bank (filed as Exhibit 4 to
Amendment No. 1 to the Registrant's Form S-1 (Registration
No. 33-96478) (the "Form S-1"), and incorporated herein by
reference)
4(b) Articles of Incorporation, as amended, of the Registrant
4(c) Articles of Amendment dated August 30, 1995 to Articles of
Incorporation
4(d) Articles of Amendment dated October 31, 1995 to Articles
of Incorporation
4(e) By-Laws of the Registrant (filed as Exhibit 3.2 to
Amendment No. 1 to the Form S-1 and incorporated herein by
reference)
5 Opinion of Troutman Sanders LLP
23(a) Consent of KPMG Peat Marwick LLP
23(b) Consent of Troutman Sanders LLP (contained in opinion
filed in Exhibit 5)
</TABLE>
<PAGE> 1
EXHIBIT 4(b)
ARTICLES OF INCORPORATION
OF
HEALTHDYNE INFORMATION ENTERPRISES, INC.
1.
The name of the Corporation is Healthdyne Information Enterprises,
Inc.
2.
The aggregate number of shares which the Corporation shall have the
authority to issue is thirty millon (30,000,000) shares, of which twenty
million (20,000,000) shall be shares of common stock, par value $.01 per share;
and ten million (10,000,000) shall be shares of preferred stock without par
value, the board of directors being hereby authorized to divide such shares of
preferred stock into classes and into shares within any class or classes and to
determine the designation and the number of shares of any class or series and
the relative voting, dividend, liquidation and other rights, preferences and
limitations of the shares of any class or series, including, but not limited
to, classes or series of preferred stock:
(a) entitling the holders thereof to cumulative, noncumulative or
partially cumulative dividends, or to no dividends;
(b) entitling the holders thereof to receive dividends payable on
a parity with, or in preference to, the dividends payable on any other class or
series of capital stock of the Corporation;
(c) entitling the holders thereof to preferential rights upon the
liquidation of, or upon any distribution of the assets of, the Corporation;
<PAGE> 2
(d) convertible, at the option of the holder or of the Corporation
or both, into shares of any other class or classes of capital stock of the
Corporation or of any series of the same or any other class or classes;
(e) redeemable, in whole or in part, at the option of the
Corporation, in cash, bonds or other property, at such price or prices, within
such period or periods, and under such conditions as the board of directors
shall so provide, including provision for the creation of a sinking fund for
the redemption thereof; and
(f) lacking voting rights or having limited voting rights or
enjoying special or multiple voting rights.
3.
The address of the initial registered office of the Corporation shall
be 1850 Parkway Place, 12th Floor, Marietta, Cobb County, Georgia 30067 and
its initial registered agent at such address shall be J. Brent Burkey.
4.
The name and address of the incorporator is J. Brent Burkey, 1850
Parkway Place, 12th Floor, Marietta, Georgia 30067.
5.
The mailing address of the initial principal office of the Corporation
is 1850 Parkway Place, 12th Floor, Marietta, Georgia 30067.
2
<PAGE> 3
6.
The initial Board of Directors of the Corporation shall consist of
three (3) members, whose names and addresses are as follows:
Parker H. Petit
J. Terry Dewberry
J. Brent Burkey
same address: 1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
7.
No director shall have any personal liability to the Corporation or
its shareholders for monetary damages for breach of duty of care or other duty
as a director, by reason of any act or omission occurring subsequent to the
date when this provision becomes effective, except that this provision shall
not eliminate or limit the liability of a director for (a) any appropriation,
in violation of his duties, of any business opportunity of the Corporation; (b)
acts or omissions which involve intentional misconduct or a knowing violation
of law; (c) liabilities of a director imposed by Section 14-2-832 of the
Georgia Business Corporation Code; or (d) any transaction from which the
director derived an improper personal benefit. No amendment to or repeal of
this Article shall apply to or have any effect on the liability or alleged
liability of any director or officer of the Corporation for or with respect to
any acts or omissions of such director or officer occurring prior to such
amendment or repeal.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Incorporation.
/s/ J. Brent Burkey
-----------------------------
J. Brent Burkey
Incorporator
3
<PAGE> 1
EXHIBIT 4(c)
ARTICLES OF AMENDMENT
OF
HEALTHDYNE INFORMATION ENTERPRISES, INC.
The Articles of Amendment of HEALTHDYNE INFORMATION ENTERPRISES, INC.
are as follows:
1.
The name of the Corporation is HEALTHDYNE INFORMATION ENTERPRISES,
INC. (the "Corporation") and its charter number is 9415299.
2.
The Articles of Incorporation of the Corporation as filed by the
Secretary of State of Georgia on the June 15, 1994, are hereby amended by
deleting the first paragraph of Article II and replacing it with the following:
"2.
The aggregate number of shares which the Corporation shall
have the authority to issue is seventy million (70,000,000) shares, of
which fifty million (50,000,000) shall be shares of common stock, par
value $.01 per share; and twenty million (20,000,000) shall be shares
of preferred stock without par value, the board of directors being
hereby authorized to divide such shares of preferred stock into
classes and into shares within any class or classes to determine the
designation and the number of shares of any class or series and the
relative voting, dividend, liquidation and other rights, preferences
and limitations of the shares of any class or series, including, but
not limited to, classes or series of preferred stock:"
3.
The proposed amendment of the Articles of Incorporation as set forth
in Paragraph 2 hereinabove was recommended to the sole shareholder of the
Corporation by the Board of Directors of the Corporation on the 10th day of
August, 1995.
<PAGE> 2
4.
The foregoing Amendment to the Articles of Incorporation of the
Corporation was duly approved by the sole shareholder of the Corporation in
accordance with the provisions of Section 14-2-1003 of the Georgia Business
Corporation Code on the 11th day of August, 1995.
IN WITNESS WHEREOF, HEALTHDYNE INFORMATION ENTERPRISES, INC. has
caused its duly authorized officer to execute these Articles of Amendment as of
this 30th day of August, 1995.
HEALTHDYNE INFORMATION ENTERPRISES, INC.
By:/s/ H. Darrell Young
-------------------------------
Title:President
----------------------------
2
<PAGE> 1
EXHIBIT 4(d)
ARTICLES OF AMENDMENT
OF
HEALTHDYNE INFORMATION ENTERPRISES, INC.
Pursuant to the provisions of Section 14-2-602(d) of the Georgia
Business Corporation Code, the undersigned, on behalf of Healthdyne Information
Enterprises, Inc. (the "Corporation"), hereby submits the following
information:
1.
The name of the Corporation is HEALTHDYNE INFORMATION ENTERPRISES,
INC. and its charter number is 9415299.
2.
The Articles of Incorporation of the Corporation as filed with the
Secretary of State of Georgia on June 15, 1994, as last amended on August 31,
1995 (as so amended, the "Articles of Incorporation"), are hereby further
amended to provide for the establishment and designation of Series A Cumulative
Preferred Shares and to fix and determine the relative rights and preferences
thereof by adding the following after Paragraph (f) of Article 2:
(g) Series A Cumulative Preferred Stock.
Of the authorized preferred stock of the corporation, 500,000
of such shares shall be designated "Series A Cumulative Preferred
Stock" and shall have the following designations, preferences,
limitations and relative rights:
(A) Certain Definitions. Unless the context otherwise
requires, the terms defined in this subparagraph (A) shall have, for
all purposes of this Paragraph (g), the meanings herein specified:
(i) "Board of Directors" shall mean the Board of
Directors of the Corporation and, to the extent permitted by law, any
committee of the Board of Directors authorized to exercise the powers
of the Board of Directors.
<PAGE> 2
(ii) "Common Stock" shall mean the common stock, par value
$.01 per share, of the Corporation, which term shall include, where
appropriate, in the case of a reclassification, recapitalization or
other changes in such Common Stock, or in the case of a consolidation
or merger of this Corporation with or into another corporation, such
consideration to which a holder of a share of Common Stock would have
been entitled upon the occurrence of such event.
(iii) "Series A Preferred Stock" shall mean the five
hundred thousand (500,000) shares of Series A Cumulative Preferred
Stock, without par value, of the Corporation.
(iv) "Junior Stock" shall mean the Common Stock and any
other class or series of stock of the Corporation not entitled to
receive any dividends unless all dividends required to have been paid
or declared and set apart for payment on the Series A Preferred Stock
and any Parity Stock shall have been so paid or declared and set apart
for payment and, for purposes of subparagraph (C) below, shall mean
any class or series of stock of the Corporation not entitled to
receive any assets upon liquidation, dissolution or winding up of the
affairs of the Corporation until the Series A Preferred Stock and any
Parity Stock shall have received the entire amount to which such stock
is entitled upon such liquidation, dissolution or winding up.
(v) "Parity Stock" shall mean the any class or series of
stock of the Corporation entitled to receive payment of dividends on a
parity with the Series A Preferred Stock or entitled to receive assets
upon liquidation, dissolution or winding up of the affairs of the
Corporation on a parity with the Series A Preferred Stock.
(vi) "Rights Declaration Date" shall mean October 30,
1995.
(vii) "Semiannual Dividend Payment Date" shall mean the
first day of March and September in each year.
(vi) "Senior Stock" shall mean any class or series of
stock of the Corporation ranking senior to the Series A Preferred
Stock and to any Parity Stock in respect of the right to receive
dividends or in respect of the right to participate in any
distribution upon liquidation, dissolution or winding up of the
affairs of the Corporation.
(B) Dividend and Distributions. (i) Subject to the prior
preferences and other rights of any Senior Stock, the holders of
shares of Series A Preferred Stock shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally
available therefor, semiannual dividends payable in cash at the rate
hereinafter fixed in this subparagraph (B) on each Semiannual Dividend
Payment Date, commencing on the first Semiannual Dividend Payment Date
after the first issuance of any shares or fractions of a share of
Series A Preferred Stock. Semiannual dividends on the Series A
Preferred Stock shall be payable to holders of record of the Series A
Preferred Stock on the respective date not exceeding 50 days preceding
such Semiannual Dividend Payment Date as shall be fixed for this
purpose by the Board of Directors, in an amount per share
2
<PAGE> 3
(rounded to the nearest cent) equal to the greater of (V) $.05 or (W)
subject to the provision for adjustment hereinafter set forth, 100
times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Semiannual Dividend
Payment Date, or, with respect to the first Semiannual Dividend
Payment Date, since the first issuance of any share or fraction of a
share of Series A Preferred Stock. In the event the Corporation shall
at any time after the Rights Declaration Date (X) declare any dividend
on Common Stock payable in shares of Common Stock, (Y) subdivide the
outstanding Common Stock, or (Z) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to
which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (W) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(ii) No dividend or other distribution may be declared or
paid on the Common Stock (other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common
Stock) unless, coincidentally with the declaration of such dividend or
such other distribution, the dividend payable on the Series A
Preferred Stock pursuant to clause (W) of subsection (i) above is
declared and the consideration sufficient for the payment thereof set
apart from funds legally available therefor so as to be available then
and on the next Semiannual Dividend Payment Date for the payment in
full thereof and for no other purpose. In the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Semiannual Dividend Payment Date and the next
subsequent Semiannual Dividend Payment Date, a dividend of $.05 per
share on the Series A Preferred Stock shall nevertheless be payable on
such subsequent Semiannual Dividend Payment Date.
(iii) Dividends on each outstanding share of Series A
Preferred Stock shall begin to accrue and be cumulative from the
Semiannual Dividend Payment Date next following the respective date of
issuance of such share unless the date of such issuance is a
Semiannual Dividend Payment Date, in which case dividends shall accrue
and be cumulative from the date of issuance.
(iv) The holders of shares of the Series A Preferred Stock
shall not be entitled to receive any dividends thereon other than the
cash dividends specified in this subparagraph (B). Unpaid dividends
shall be cumulative and shall accrue, whether or not declared by the
Board of Directors, until the date such dividends are paid. Accrued
but unpaid dividends on the Series A Preferred Stock shall not bear
interest. Dividends on account of arrears for any past dividend
periods may be declared and paid at any time, without reference to any
Semiannual Dividend Payment Date, to holders of record
3
<PAGE> 4
of the Series A Preferred Stock on such date, not more than 50 days
preceding the payment date thereof, as may be fixed by the Board of
Directors.
(v) So long as any shares of Series A Preferred Stock
shall be outstanding, the Corporation shall not declare or pay on any
Junior Stock any dividend in cash or property of any sort, nor shall
the Corporation make any distribution on any Junior Stock, or set
aside any assets for any such purposes, nor shall any Junior Stock be
purchased, redeemed or otherwise acquired by the Corporation or any of
its subsidiaries, nor shall any monies be paid, set aside for payment
or made available for a sinking fund for the purchase or redemption of
any Junior Stock, unless and until all dividends to which the holders
of the Series A Preferred Stock and any Parity Stock shall have been
entitled for all current and all previous dividend periods shall have
been paid or declared and the consideration sufficient for the payment
thereof set apart so as to be available for the payment thereof and
for no other purpose; provided, however, that nothing contained in
this subsection (v) shall prevent the payment of dividends solely in
Junior Stock or the repurchase, redemption or other acquisition solely
through the issuance of Junior Stock.
(C) Distributions Upon Liquidation Dissolution or Winding
Up. Subject to the prior payment in full of the preferential amounts
to which any Senior Stock is entitled, in the event of any
liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary, the holders of shares of the Series A
Preferred Stock shall be entitled to receive from the assets of the
Corporation available for distribution to the shareholders the sum of
$50 per share, together with the amount of all cumulative dividends
accrued and unpaid thereon to and including the date of such
liquidation, dissolution or winding up, before any payment or
distribution shall be made to the holders of any Junior Stock of the
Corporation, which payment shall be made pari passu to any such
payment made to the holders, if any, of any Parity Stock. The
holders of the Series A Preferred Stock shall be entitled to no other
or further distribution of or participation in any remaining assets
of the Corporation after receiving the liquidation price described
above. If, upon distribution of the Corporation's assets in
liquidation, dissolution or winding up, the assets of the Corporation
to be distributed among the holders of the Series A Preferred Stock
and to all holders of any Parity Stock shall be insufficient to
permit payment in full to such holders of the preferential amounts to
which they are entitled, then the entire assets of the Corporation to
be distributed to holders of the Series A Preferred Stock and such
Parity Stock shall be distributed pro rata to such holders based upon
the aggregate of the full preferential amounts to which the shares of
Series A Preferred Stock and such Parity Stock would otherwise
respectively be entitled. Neither the consolidation or merger of the
Corporation with or into any other corporation or corporations nor
the sale, transfer, or lease of all or substantially all the assets
of the Corporation shall itself be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of
this subparagraph (C).
(D) Voting Rights. (i) Except as otherwise expressly
provided in this subparagraph (D) or as otherwise required by law, the
holders of shares of Series A Preferred Stock shall vote together with
the holders of the Common Stock (and the
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holders of any other class or series of the Corporation's stock
entitled to vote with the holders of the Common Stock) as a single
class for the election of directors and on all other matters coming
before any meeting of the shareholders of the Corporation or otherwise
to be acted upon by the shareholders of the Corporation, subject to
any voting rights granted or which may be granted to holders of any
other class or series of the preferred stock of the Corporation. Each
share of Series A Preferred Stock shall entitle the holder thereof to
one vote on all matters submitted to a vote of the shareholders of the
Corporation.
(ii) In addition to the voting rights set forth above, if
and when dividends payable on the Series A Preferred Stock shall be in
arrears in an amount equivalent to or exceeding three (3) full
semiannual dividends thereon, whether or not consecutive, the holders
of shares of the Series A Preferred Stock, voting separately as a
class, shall be entitled to elect two directors to the Board of
Directors. Directors so elected shall thereupon become additional
directors of the Corporation and the authorized number of directors of
the Corporation shall thereupon be automatically increased by such
number. During such times that the holders of the Series A Preferred
Stock, voting as a class, shall be entitled to elect such additional
directors as provided herein, the holders of the Series A Preferred
Stock shall not be entitled to participate in the election of any
other directors with the holders of shares of the Common Stock or any
other class or classes of stock who are entitled to vote for the
election of directors.
Such right of the holders of shares of the Series A Preferred
Stock who are entitled to vote in such manner to elect such additional
directors may be exercised until all dividends in default on the
Series A Preferred Stock shall have been paid or declared and the
consideration sufficient for the payment in full thereof set apart so
as to be available for the payment thereof and for no other purpose;
when said dividends shall have been so paid or declared and set apart,
such right to elect two directors shall terminate, subject to the
vesting of such voting rights in the event of any such future default
or defaults in the payment of dividends. Whenever the holders of
shares of the Series A Preferred Stock who are entitled to vote in
such manner shall be divested of such voting rights by reason of the
payment or the declaration and setting apart of consideration
sufficient for the payment in full of the dividends then in default,
the terms of office of the directors elected as such by the holders of
shares of the Series A Preferred Stock shall forthwith terminate and
the number of the directors of the Corporation shall be reduced
correspondingly.
At any time after such voting rights shall so have vested in
the holders of shares of the Series A Preferred Stock who are entitled
to vote in such manner, the Secretary of the Corporation may, and upon
the written request of the holders of record of not less than 75% of
the outstanding shares of Series A Preferred Stock, addressed to him
at the principal office of the Corporation, shall, call a special
meeting of the holders of shares of the Series A Preferred Stock who
are entitled to vote in such manner for the election of the directors
to be elected by them, such meeting to be held within 10 days after
the earlier of such call or the delivery of such request and at the
place and upon the notice
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provided by the By-laws of the Corporation for the holding of meetings
of shareholders, except that the Secretary of the Corporation shall
not be required to call such a special meeting if the request for such
call is received less than 45 days prior to the date fixed for the
next annual meeting of shareholders.
(E) Consolidation, Merger, Etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash and/or any other
property, then in any such case the shares of Series A Preferred Stock
shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount set forth
in the preceding sentence with respect to the exchange or change of
shares of Series A Preferred Stock shall be adjusted by multiplying
such amount (as such amount may have been previously adjusted by
reason of the prior occurrence(s) of any such events)) by a fraction
the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(F) Reacquired Shares. Any Shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of preferred stock and may be
reissued as part of a new series of preferred stock to be created by
amendment of the Articles of Incorporation of the Corporation adopted
by resolution of the Board of Directors, subject to the conditions and
restrictions on issuance set forth herein.
(G) Preemptive Rights. The holders of shares of the
Series A Preferred Stock shall not have any preemptive right to
subscribe for or purchase any shares of stock or any other securities
which may be issued by the Corporation.
(H) No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
(I) Amendment. Without the consent of the holders of at
least 75% of the shares of Series A Preferred Stock at the time
outstanding, either in writing or by vote at a meeting called for that
purpose at which the holders of the Series A Preferred Stock shall
vote as a class, neither the Articles of Incorporation of the
Corporation nor any resolution of the Board of Directors establishing
and designating a series of preferred stock and determining the
relative rights and preferences thereof shall be changed so as
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to alter in an adverse manner the designations, preferences,
limitations and rights of holders of the Series A Preferred
Stock.
(J) Fractional Shares. The Series A Preferred Stock may
be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting
rights, receive dividends, participate in distributions and to have
the benefit of all other rights of holders of Series A Preferred
Stock.
(K) Exclusion of Other Rights. Except as may otherwise
be required by law, the shares of Series A Preferred Stock shall not
have any designations, preferences, limitations or relative rights,
other than those specifically set forth in the Articles of
Incorporation of this Corporation.
(L) Severability of Provisions. If any right, preference
or limitation of the Series A Preferred Stock set forth in this
Paragraph (g) (as such Paragraph may be amended from time to time) is
invalid, unlawful or incapable of being enforced by reason of any rule
of law or public policy, all other rights, preferences and limitations
set forth in this Paragraph (as so amended) which can be given effect
without the invalid, unlawful or unenforceable right, preference or
limitation shall, nevertheless, remain in full force and effect, and
no right, preference or limitation herein set forth shall be deemed
dependent upon any other such right, preference or limitation unless
so expressed herein.
3.
The Articles of Incorporation are hereby further amended by deleting
Article 7 in its entirety and replacing it with the following:
7.
No director shall have any personal liability to the
Corporation or its shareholders for monetary damages for breach of
duty of care or other duty as a director, by reason of any act or
omission occurring subsequent to the date when this provision becomes
effective, except that this provision shall not eliminate or limit the
liability of a director for (a) any appropriation, in violation of his
duties, of any business opportunity of the Corporation; (b) acts or
omissions which involve intentional misconduct or a knowing violation
of law; (c) liabilities of a director imposed by Section 14-2-832 of
the Georgia Business Corporation Code; or (d) any transaction from
which the director derived an improper personal benefit. No amendment
to or repeal of this Article shall apply to or have any effect on the
liability or alleged liability of any director or officer of the
Corporation for or with respect to any acts or omissions of such
director or officer occurring prior to such amendment or repeal;
provided, however, that if further elimination or limitation of the
liability of directors is provided for or permitted by the Georgia
Business Corporation Code or other applicable law at any time, then
the liability of a director of the Corporation shall be eliminated or
limited to the fullest extent then
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so provided for or permitted by the Georgia Business Corporation Code
or other applicable law this Article 7 shall be deemed to include and
have incorporated herein provision for such further elimination or
limitation of liability of a director effective upon the enabling
provision therefor in the Georgia Business Corporation Code or other
applicable law becoming effective. Without limiting the foregoing, if
the Georgia Business Corporation Code is amended to permit the
limitation of a director's liability under clause (d) above to the
amount of the financial benefit received by a director to which he is
not entitled, then any liability of a director of the Corporation not
eliminated because of said clause (d) shall be limited to the amount
of any financial benefit received by the director to which he is not
entitled.
4.
The proposed amendments of the Articles of Incorporation as set forth
in paragraphs 2 and 3 hereinabove were adopted by the Board of Directors of the
Corporation on October 20, 1995. Shareholders' approval was not required for
the proposed amendment set forth in paragraph 2 hereinabove pursuant to Section
14-2-1002 of the Georgia Business Corporation Code. The proposed amendment set
forth in paragraph 3 hereinabove was duly approved by the sole shareholder of
the Corporation in accordance with the provisions of Section 14-2-1003 of the
Georgia Business Corporation Code on the 20th day of October, 1995.
IN WITNESS WHEREOF, HEALTHDYNE INFORMATION ENTERPRISES, INC. has
caused its duly authorized officer to execute these Articles of Amendment as of
this 20th day of October, 1995.
HEALTHDYNE INFORMATION ENTERPRISES, INC.
By:/s/ Joseph G. Bleser
--------------------------------
Title:Chief Financial Officer
-----------------------------
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EXHIBIT 5
TROUTMAN SANDERS LLP
600 Peachtree Street, N.E.
Suite 5200, NationsBank Plaza
Atlanta, Georgia 30308-2216
(404)885-3000
July 17, 1996
Healthdyne Information Enterprises, Inc.
1850 Parkway Place
Suite 1100
Marietta, Georgia 30067
Gentlemen:
We have examined a copy of the registration statement on Form S-8
proposed to be filed by Healthdyne Information Enterprises, Inc. (the
"Company"), with the Securities and Exchange Commission (the "Commission"),
relating to the registration pursuant to the provisions of the Securities Act
of 1933, as amended (the "Act"), of 930,000 shares (the "Shares") of the
Company's Common Stock, par value $.01 per share, together with associated
preferred stock purchase rights (the "Common Stock"), reserved for issuance in
connection with options to be granted under the Company's Stock Option Plan I
(the "Plan"). In rendering this opinion, we have reviewed such documents and
made such investigations as we deemed appropriate.
We are of the opinion that, subject to compliance with the pertinent
provisions of the Act and to compliance with such securities or "Blue Sky" laws
of any jurisdiction as may be applicable, when certificates evidencing the
Shares have been duly executed, countersigned, registered, issued and delivered
in accordance with the terms of the Plan and the respective stock option
agreements entered into, under and in accordance with the Plan, the Shares will
be duly and validly issued and outstanding, fully paid and non-assessable
shares of Common Stock of the Company.
We are members of the Bar of the State of Georgia. In expressing the
opinions set forth above, we are not passing on the laws of any jurisdiction
other than the laws of the State of Georgia and the Federal law of the United
States of America.
We hereby consent to the filing of this opinion or copies thereof as
an exhibit to the registration statement referred to above.
Very truly yours,
/s/ Troutman Sanders LLP
TROUTMAN SANDERS LLP
<PAGE> 1
EXHIBIT 23(a)
The Board of Directors
Healthdyne Information Enterprises, Inc.
We consent by incorporation by reference in the registration statement on Form
S-8 of Healthdyne Information Enterprises, Inc. of our report dated February
14, 1996, relating to the consolidated balance sheet of Healthdyne Information
Enterprises, Inc. and subsidiaries as of December 31, 1995 and 1994 and the
related consolidated statements of operations, shareholders' equity and cash
flows for the year ended December 31, 1995 and for the period from June 15,
1994 (date of incorporation) to December 31, 1994 which report appears in the
December 31, 1995, annual report on Form 10-K of Healthdyne Information
Enterprises, Inc.
KPMG PEAT MARWICK LLP
/s/ KPMG Peat Marwick LLP
Atlanta, Georgia
July 16, 1996
