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As filed with the Securities and Exchange Commission on December 21, 1998.
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MATRIA HEALTHCARE, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 58-2205984
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1850 PARKWAY PLACE, 12TH FLOOR
MARIETTA, GEORGIA 30067
(Address of principal executive offices) (Zip Code)
MATRIA HEALTHCARE, INC. 1997 STOCK INCENTIVE PLAN
AND
CERTAIN NON-PLAN OPTION GRANTS
(Full title of the plan)
ROBERTA L. MCCAW, ESQ.
VICE PRESIDENT -- LEGAL, GENERAL
COUNSEL AND SECRETARY
1850 PARKWAY PLACE, 12TH FLOOR
MARIETTA, GEORGIA
(770) 767-4500
(Name, address and telephone number, including area code, of agent for service)
The Commission is requested to mail signed copies of all orders, notices
and communications to:
ANGELA M. WOO, ESQ.
TROUTMAN SANDERS LLP
600 PEACHTREE STREET, N.E., SUITE 5200
ATLANTA, GEORGIA 30308-2216
(404) 885-3268
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CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
Proposed Proposed
Amount maximum maximum
Title of each class of to be offering price aggregate offering Amount of
securities to be registered registered (1) per share (2) price (2) registration fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shares of common stock, $.01 par value, 1,800,000 $1.91 $3,438,000 $956
together with associated common stock shares
purchase rights (the "Common Stock"),
issuable pursuant to the Matria Healthcare,
Inc. 1997 Stock Incentive Plan
- -----------------------------------------------------------------------------------------------------------------------------
Shares of Common Stock issuable pursuant 567,150 $1.91 $1,083,257 $302
to certain non-plan options shares
- -----------------------------------------------------------------------------------------------------------------------------
$1,258
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as
amended (the "1933 Act"), includes 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 such plan.
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(2) Pursuant to Rule 457(h)(1) under the 1933 Act, the offering price
is estimated solely for the purpose of calculating the registration
fee on the basis of the average of the high and low prices on
December 17, 1998 as reported on the Nasdaq National Market.
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PART II -- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Matria Healthcare, Inc. ("Matria" or the "Company") hereby
incorporates by reference into this registration statement the following
documents:
(a) the Company's annual report on Form 10-K for the fiscal year
ended December 31, 1997;
(b) the Company's quarterly report on Form 10-Q for the fiscal
quarter ended March 31, 1998;
(c) the Company's quarterly report on Form 10-Q for the fiscal
quarter ended June 30, 1998;
(d) the Company's quarterly report on Form 10-Q for the fiscal
quarter ended September 30, 1998;
(e) the descriptions of the Company's Common Stock and the Common
Stock Purchase Rights associated with the Common Stock as
contained in the Company's Registration Statements on Form 8-A
filed pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended (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
Company by Troutman Sanders LLP, Atlanta, Georgia. Carl E. Sanders, a director
of the Company and the Chairman of Troutman Sanders LLP, is the beneficial owner
of 87,000 shares of the Matria Common Stock.
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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 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
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Medical Corporation (Delaware) ("Tokos"), Healthdyne, Inc. 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.
The following exhibits are filed as part of this Registration
Statement:
Exhibit
Number
-------
4 Shareholders Rights Agreement dated January 30, 1996 between
the Company and SunTrust Bank filed as Exhibit 4(a) of the
Company's Post-Effective Amendment No. 1 on Form S-8 to Form
S-4 (Registration No. 333-00781) and incorporated herein by
reference.
5 Opinion of Troutman Sanders LLP.
23.1 Consent of Troutman Sanders LLP (contained in opinion filed in
Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (included in the signature page to the
Registration Statement).
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 1933 Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Securities and Exchange Commission (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
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"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 1934 Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under
the 1933 Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of any offering.
(b) Filings incorporating subsequent 1934 Act documents by reference.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the 1933 Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated
by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Filing of registration statement on Form S-8. Insofar as
indemnification for liabilities arising under the 1933 Act may be permitted to
directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the 1933 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 1933 Act
and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act 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 December 17, 1998.
MATRIA HEALTHCARE, INC.
(Registrant)
By: /s/ Roberta L. McCaw
----------------------------------------
Name: Roberta L. McCaw
Title: Vice President -- Legal, General Counsel
and Secretary
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Roberta L. McCaw his or her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for her and in her 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 she might or would do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or her 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, as amended, has been signed by the following persons in
the capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Donald R. Millard President, Chief Executive Officer December 17, 1998
- ---------------------- Chief Financial Officer and Director
Donald R. Millard
/s/ Yvonne V. Scoggins Vice President, Treasurer and December 17, 1998
- ---------------------- Chief Accounting Officer
Yvonne V. Scoggins (Principal Accounting Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Parker H. Petit Chairman of the Board of Directors December 17, 1998
- ----------------------
Parker H. Petit
/s/ Frank D. Powers Director December 17, 1998
- ----------------------
Frank D. Powers
/s/ Carl E. Sanders Director December 17, 1998
- ----------------------
Carl E. Sanders
/s/ Jackie M. Ward Director December 17, 1998
- ----------------------
Jackie M. Ward
/s/ Morris S. Weeden Director December 17, 1998
- ----------------------
Morris S. Weeden
/s/Frederick P. Zuspan Director December 17, 1998
- ----------------------
Frederick P. Zuspan
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number
------
<S> <C>
4 Shareholders Rights Agreement dated January 30, 1996 between
Matria Healthcare, Inc. (the "Company") and SunTrust Bank
filed as Exhibit 4(a) of the Company's Post-Effective
Amendment No. 1 on Form S-8 to Form S-4 (Registration No.
333-00781) and incorporated herein by reference.
5 Opinion of Troutman Sanders LLP.
23.1 Consent of Troutman Sanders LLP (contained in opinion filed in
Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Powers of Attorney (included in the signature page to the
Registration Statement).
</TABLE>
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EXHIBIT 5
Troutman Sanders LLP
Nationsbank Plaza
600 Peachtree Street, N.E. - Suite 5200
Atlanta, Georgia 30308-2216
December 21, 1998
Matria Healthcare, Inc.
1850 Parkway Place, 12th Floor
Marietta, Georgia 30067
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is being delivered in connection with the filing by Matria
Healthcare, Inc., a Delaware corporation (the "Company"), with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, of a
Registration Statement on Form S-8 (the "Registration Statement") with respect
to the proposed offering by the Company of an aggregate of 2,367,150 shares of
the Company's Common Stock, par value $.01 per share, together with associated
Common Stock Purchase Rights (the "Shares"), to be issued in connection with the
Matria Healthcare, Inc. 1997 Stock Incentive Plan (the "Plan") and certain
non-plan options (the "Options").
As counsel for the Company, we have examined the relevant corporate
documents, as well as the relevant state statutes, incident to the giving of
this opinion, and we are generally familiar with the affairs of the Company.
Based upon the foregoing, we are of the opinion that the Shares
reserved for issuance in accordance with the Plan and the Options have been duly
authorized and will, when and to the extent issued in connection with and in
accordance with the Plan, and/or the relevant stock option agreements, as the
case may be, for a consideration at least equal to the par value of such option
shares, be validly issued, fully paid and nonassessable.
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 use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Troutman Sanders LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Matria Healthcare, Inc.
We consent to the use of our reports incorporated herein by reference.
KPMG PEAT MARWICK LLP
Atlanta, Georgia
December 21, 1998
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