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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 4, 1996
REGISTRATION NO. 333-
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================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MATRIA HEALTHCARE, INC.
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(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 58-2205984
- ------------------------------------------- ----------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
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(Address of principal executive offices) (Zip Code)
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MATRIA HEALTHCARE, INC. 1996 DIRECTORS' NON-QUALIFIED STOCK OPTION PLAN
AND
MATRIA HEALTHCARE, INC. 1996 STOCK INCENTIVE PLAN
(Full title of the plans)
---------------------------------
J. Brent Burkey, Esq.
Senior Vice President and General Counsel
MATRIA HEALTHCARE, INC.
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
---------------------------------
(Name and address of agent for service)
770-423-4500
---------------------------------
(Telephone number, including area code, of agent for service)
---------------------------------
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==============================================================================================================================
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of registration
be registered registered (1) offering price per aggregate offering fee
share (2) price (2)
==============================================================================================================================
Common Stock, par
value $.01 per share
(together with
associated 3,500,000 shares $8 5/16 $29,093,750 $10,033
common stock purchase
rights)
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(a) under the Securities Act of
1933, 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), these figures are based upon the
average of the high and low prices of the Common Stock on March 29, 1996, as
reported in the Nasdaq National Market System, and are used solely for the
purpose of calculating the registration fee.
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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 a copy of the following:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1995;
(b) Current Reports on Form 8-K dated March 22, 1996 and
Form 8-K/A dated March 29, 1996; and
(c) The description of the Registrant's capital stock
contained in the Joint Proxy Statement/Prospectus of
Healthdyne, Inc. ("Healthdyne") and Tokos Medical
Corporation (Delaware) ("Tokos"), predecessors of the
Registrant, filed as part of Registrant's
Registration Statement on Form S-4 dated February 8,
1996, 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,
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 have been incorporated by reference into this registration statement.
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 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.
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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 74,500 shares of the Common Stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware ("DGCL")
permits a corporation to indemnify officers, directors, employees and agents
for actions taken in good faith and in a manner they reasonably believed to be
in, or not opposed to, the best interests of the corporation, and with respect
to any criminal actions, which they had no reasonable cause to believe was
unlawful. 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 DGCL provides that indemnification may not be made
for any claim, issue or matter as to which a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation, unless and only to the extent a court determines
that the person is entitled to indemnity for such expenses as the court deems
proper.
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. In addition, 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 Bylaws provide that each person who is
involved in any actual or threatened action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she
is or was a director, officer, employee or agent 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
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right to indemnification will be a contract right and will include 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. 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 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 may
maintain insurance on behalf of its directors, officers, employees and agents.
Additionally, the Agreement and Plan of Merger dated as of October 2, 1995, as
amended, by and among Tokos, Healthdyne and the Registrant requires such
insurance to be maintained by Registrant covering present and former officers,
directors, employees, trustees and agents of Tokos and Healthdyne for a period
of at least six years from the Closing Date thereunder, subject to certain
limitations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number
4 Shareholder Rights Agreement dated January
30, 1996 between the Registrant and SunTrust
Bank, incorporated by reference to Exhibit
4(a) of Post Effective Amendment to Form S-4
on Form S-8 (No. 333-00781).
5 Opinion of Troutman Sanders LLP.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of KPMG Peat Marwick LLP.
23(c) Consent of Troutman Sanders LLP (contained in
opinion filed in Exhibit 5).
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Exhibits listed above which have heretofore been filed with
the Securities and Exchange Commission and which were incorporated as noted
above are hereby incorporated herein by reference and made a part hereof with
the same effect as if filed herewith.
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
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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 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 (and,
where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) 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.
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SIGNATURES
The Registrant. 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 March 28, 1996.
MATRIA HEALTHCARE, INC.
By: /s/ Parker H. Petit
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Parker H. Petit
Chairman of the Board
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SIGNATURES
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Robert F. Byrnes, Donald R.
Millard and J. Brent Burkey, 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.
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Signatures Title Date
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/s/ Parker H. Petit Chairman of the Board March 28, 1996
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Parker H. Petit
Chief Executive March 28, 1996
/s/ Robert F. Byrnes Officer, President and
------------------------------------------ Director
Robert F. Byrnes
Senior Vice President,
/s/ Donald R. Millard Chief Financial Officer March 28, 1996
------------------------------------------ and Treasurer
Donald R. Millard
/s/ Craig T. Davenport Director March 28, 1996
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Craig T. Davenport
/s/ Thomas Erickson Director March 28, 1996
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Thomas Erickson
/s/ David L. Goldsmith Director March 28, 1996
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David L. Goldsmith
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SIGNATURES
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Signatures Title Date
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<S> <C> <C>
/s/ Gene P. Guselli Director March 28, 1996
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Gene P. Guselli
/s/ Carl E. Sanders Director March 28, 1996
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Carl E. Sanders
/s/ Jackie M. Ward Director March 28, 1996
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Jackie M. Ward
/s/ Morris S. Weeden Director March 28, 1996
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Morris S. Weeden
/s/ Frederick P. Zuspan, M.D. Director March 28, 1996
------------------------------------------
Frederick P. Zuspan, M.D.
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EXHIBIT INDEX
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Exhibit Sequentially
Number Description Numbered Page
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4 Shareholder Rights Agreement dated January 30, 1996 between
the Registrant and SunTrust Bank, incorporated by reference
to Exhibit 4(a) of Post Effective Amendment to Form S-4 on Form S-8
(No. 333-00781).
5 Opinion of Troutman Sanders LLP.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of KPMG Peat Marwick LLP.
23(c) Consent of Troutman Sanders LLP (contained in opinion filed
in Exhibit 5).
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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
April 3, 1996
Matria Healthcare, Inc.
1850 Parkway Place
12th Floor
Marietta, Georgia 30067
Gentlemen:
We have examined a copy of the registration statement on Form
S-8 proposed to be filed by Matria Healthcare, 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 3,500,000 shares (the "Shares") of the Company's Common
Stock, par value $.01 per share (the "Common Stock"), along with associated
Common Stock purchase rights reserved for issuance under the Matria Healthcare,
Inc. 1996 Directors' Non-Qualified Stock Option Plan and the Matria Healthcare,
Inc. 1996 Stock Incentive Plan (the "Plans"). 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 Plans and the
respective agreements thereunder, 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, the General Corporation Law of the
State of Delaware 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,
TROUTMAN SANDERS LLP
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EXHIBIT 23(a)
ACCOUNTANTS' CONSENT
The Board of Directors
Matria Healthcare, Inc.
We consent to incorporation by reference in the registration statement Form S-8
of Matria Healthcare, Inc. of our reports dated February 22, 1996, relating to
the consolidated balance sheets of Tokos Medical Corporation (Delaware) and
subsidiaries (predecessor of Matria Healthcare, Inc.) as of December 31, 1995
and 1994, and the related consolidated statements of earnings (loss),
shareholders' equity and cash flows for each of the years in the three-year
period ended December 31, 1995 and related schedule, which reports appear in
the December 31, 1995 annual report on Form 10-K of Tokos Medical Corporation
(Delaware).
/s/ Ernst & Young LLP
Orange County, California
April 2, 1996
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EXHIBIT 23(b)
ACCOUNTANTS' CONSENT
The Board of Directors
Matria Healthcare, Inc.
We consent to incorporation by reference in the registration statement on Form
S-8 of Matria Healthcare, Inc. of our report dated March 1, 1996, except as to
note 14, which is as of March 8, 1996, relating to the consolidated balance
sheets of Healthdyne, Inc. and subsidiaries as of December 31, 1995 and 1994,
and the related consolidated statements of earnings (loss), shareholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 1995, which report is incorporated by reference in the December
31, 1995 annual report on Form 10-K of Matria Healthcare, Inc.
/s/ KPMG Peat Marwick LLP
-------------------------
KPMG PEAT MARWICK LLP
Atlanta, Georgia
April 2, 1996
