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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 7, 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
----------------
MATRIA HEALTHCARE, INC.
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(Exact name of registrant as specified in its charter)
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)
MATRIA HEALTHCARE, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
---------------------------------
J. Brent Burkey, Esq.
General Counsel
MATRIA HEALTHCARE, INC.
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
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(Name and address of agent for service)
770-423-4500
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(Telephone number, including area code, of agent for service)
-----------------------------------
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Title of securities to Amount to be Proposed maximum Proposed maximum Amount of registration
be registered registered (1) offering price per share aggregate offering price fee
(2) (2)
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<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share
(together with
associated 500,000 shares $9 13/32 $4,703,125 $1,621.77
common stock purchase
rights)
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement also covers (i) 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
employee benefit plan described herein and (ii) an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
(2) Estimated solely for the purpose of calculating the registration
fee required by Section 6(b) of the Securities Act of 1933, as amended, and
computed by averaging (a) the average of the high and low prices of the Common
Stock of Healthdyne, Inc. and (b) the average of the high and low prices of the
Common Stock of Tokos Medical Corporation (Delaware), predecessors of the
Registrant, as reported in the Nasdaq National Market on March 1, 1996.
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PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 (plan
information and registrant information and plan annual information) will be
sent or given to employees as specified by Securities and Exchange Commission
Rule 428(b)(1). Such documents need not be filed with the Securities and
Exchange Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933.
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<PAGE> 3
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) 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 (the "Joint Proxy Statement"); and
(b) the description of the Registrant's capital stock
contained in the Joint Proxy Statement 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.
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 Healthdyne,
convertible into 74,500 shares of the Registrant's Common Stock upon the
consummation of the proposed merger of Healthdyne and Registrant.
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<PAGE> 4
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 or his or her heirs, executors and administrators; provided,
however, that Registrant will indemnify any such person seeking indemnification
in connection with a proceeding initiated by such person only if such
proceeding was authorized by Registrant's Board of Directors. The right to
indemnification 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
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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 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.
<TABLE>
<CAPTION>
Exhibit
Number
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<S> <C>
4(a) Matria Healthcare, Inc. 1996 Employee Stock Purchase Plan, incorporated by reference from the
Joint Proxy Statement
4(b) Amended and Restated Certificate of Incorporation of the Registrant, incorporated by reference
from the Joint Proxy Statement (Appendix D)
4(c) Bylaws of the Registrant, incorporated by reference from the Joint Proxy Statement (Appendix E)
4(d) Shareholder Rights Agreement dated January 30, 1996 between the Registrant and SunTrust Bank,
incorporated by reference from the Registrant's Registration Statement on Form S-4 dated
February 8, 1996
5 Opinion of Troutman Sanders LLP
23(a) Consent of Ernst & Young LLP
23(b) Consent of KPMG Peat Marwick LLP
</TABLE>
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23(c) Consent of Troutman Sanders LLP (contained in opinion
filed in Exhibit 5)
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.
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(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.
(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 7, 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 and Donald R.
Millard, 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.
<TABLE>
<CAPTION>
Signatures Title Date
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<S> <C> <C>
/s/ Parker H. Petit Chairman of the Board March 7, 1996
-------------------------------------------------
Parker H. Petit
/s/ Robert F. Byrnes Chief Executive
------------------------------------------------- Officer, President, March 7, 1996
Robert F. Byrnes Director and
Secretary
/s/ Donald R.Millard Senior Vice
------------------------------------------------- President and Chief March 7, 1996
Donald R. Millard Financial Officer
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
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 7, 1996.
MATRIA HEALTHCARE, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
By: /s/ Parker H. Petit
---------------------------------------------------
Parker H. Petit, Chairman of the Board
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Page
- ------ ----------- -------------
<S> <C>
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)
</TABLE>
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EXHIBIT 5
<PAGE> 2
EXHIBIT 5
TROUTMAN SANDERS LLP
600 Peachtree Street, N.E.
Suite 5200, NationsBank Plaza
Atlanta, Georgia 30308-2216
(404) 885-3000
March 7, 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 500,000 shares (the "Shares") of the Company's Common
Stock, par value $.01 per share, along with associated Common Stock purchase
rights (the "Common Stock"), reserved for issuance under the Matria Healthcare,
Inc. 1996 Employee Stock Purchase Plan (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 subscription 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,
/s/ Troutman Sanders LLP
TROUTMAN SANDERS LLP
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EXHIBIT 23(a)
<PAGE> 2
EXHIBIT 23(a)
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 reports dated February 21, 1995, relating
to the consolidated balance sheets of Tokos Medical Corporation (Delaware) and
subsidiaries (predecessor of Matria Healthcare, Inc.) as of December 31, 1994
and 1993, 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, 1994 and related schedule, which reports appear in
the December 31, 1994 annual report on Form 10-K of Tokos Medical Corporation
(Delaware).
/s/ Ernst & Young LLP
Orange County, California
March 8, 1996
<PAGE> 1
EXHIBIT 23(b)
<PAGE> 2
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 reports dated February 17, 1995, relating
to the consolidated balance sheets of Healthdyne, Inc. and subsidiaries
(predecessor of Matria Healthcare, Inc.) as of December 31, 1994 and 1993, 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, 1994 and related schedule, which reports appear in the December 31, 1994
annual report on Form 10-K of Healthdyne, Inc.
/s/ KPMG Peat Marwick LLP
KPMG PEAT MARWICK LLP
Atlanta, Georgia
March 7, 1996
