As filed with the Securities and Exchange Commission on December 2, 1998
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
IntegraMed America, Inc.
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(Exact name of registrant as specified in its charter)
Delaware
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(State or other jurisdiction of incorporation or organization)
06-1150326
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(I.R.S. employer identification no.)
One Manhattanville Road, Purchase, New York 10577-2100
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(Address of principal executive offices)
1992 Incentive and Non-Incentive Stock Option Plan of IntegraMed America, Inc.,
as amended and restated
(Full title of plan)
Gerardo Canet, President
IntegraMed America, Inc.
One Manhattanville Road
Purchase, New York 10577-2100
(Name and address of agent for service)
(914-253-8000)
(Telephone number, including area code, of agent for service)
Copy to:
Alison Newman, Esq.
Bachner, Tally, Polevoy & Misher LLP
380 Madison Avenue
New York, NY 10017
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price Fee
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Common Stock, $.01
par value 175,000 $3.00 $525,000 $154.88
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(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as
amended, an additional undeterminable number of shares of Common Stock
is being registered to cover any adjustment in the number of shares of
Common Stock pursuant to the anti-dilution provisions of the 1992
Incentive and Non-Incentive Stock Option Plan, as amended and restated.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. The price shown is the average of the
high and low prices of the Common Stock on November 30, 1998 as reported
on Nasdaq.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Registration Statements on Form S-8 (File Nos. 33-77312 and
333-39963), filed by IntegraMed America, Inc. (the "Registrant") on April 4,
1994 and November 12, 1997, respectively, and the documents listed below are
hereby incorporated by reference into this Registration Statement, and all
documents subsequently filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be part hereof from the date of filing such documents:
(a) Registrant's Annual Report on Form 10-K for the period ended
December 31, 1997;
(b)(1) Registrant's Quarterly Reports on Form 10-Q for the periods
ended March 31, 1998, June 30, 1998 and September 30, 1998;
(b)(2) Registrant's Current Report on Form 8-K dated March 24, 1998;
(b)(3) Registrant's Current Report on Form 8-K dated January 23,
1998;
(b)(4) Registrant's definitive Proxy Statement, dated May 1, 1998 as
filed with the Securities and Exchange Commission on April
30, 1998 (the "Commission") in connection with the
Registrant's Annual Meeting of Stockholders held on June 9,
1998;
(b)(5) Registrant's definitive Proxy Statement, dated October 19,
1998 as filed with the Commission on October October 19, 1998
in connection with the Registrant's Special Meeting of
Stockholders held on November 17, 1998
(c) The description of the Registrant's Common Stock, $.01 par
value ("Common Stock"), contained in the Registration
Statement on Form 8-A (No. 1-11440), declared effective
October 8, 1992, under "Item 1. Description of Registrant's
Securities to be Registered."
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Item 8. Exhibits
5.1 Opinion of Bachner, Tally, Polevoy & Misher LLP, with respect
to the legality of the Common Stock to be registered
hereunder
10.2(b) 1992 Incentive and Non-Incentive Stock Option Plan, as
amended and restated
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Bachner, Tally, Polevoy & Misher LLP (contained in
Exhibit 5.1)
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 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 Purhase, State of New York, on the 1st day of
December, 1998.
INTEGRAMED AMERICA, INC.
By: /s/Gerardo Canet
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Gerardo Canet,
Chairman of the Board, President and
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, severally and not jointly, Gerardo Canet
and Claude E. White, with full power to act alone, his true and lawful
attorneys-in-fact, with the power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective 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 full power and authority to do and perform each and every act
and thing requisite and necessary to be done as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact may lawfully do or cause to be done by virtue
hereof.
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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 dates indicated:
/s/Gerardo Canet December 1, 1998
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Gerardo Canet - Chairman of the Board
President and Chief Executive Officer
/s/Eugene R. Curcio December 1, 1998
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Eugene R. Curcio - Vice President, Finance
and Chief Financial Officer
/s/Fazle Husain December 1, 1998
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M. Fazle Husain - Director
/s/Michael Levy December 1, 1998
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Michael Levy, M.D. - Director
/s/Sarason D. Liebler December 1, 1998
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Sarason D. Liebler - Director
/s/Aaron S. Lifchez December 1, 1998
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Aaron S. Lifchez, M.D. - Director
/s/Patricia M. McShane December 1, 1998
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Patricia M. McShane, M.D. - Director
/s/Larry J. Stuesser December 1, 1998
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Larry J. Stuesser - Director
/s/Elizabeth E. Tallett December 1, 1998
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Elizabeth E. Tallett - Director
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INDEX TO EXHIBITS
INTEGRAMED AMERICA, INC.
Exhibit
No. Description
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5.1 Opinion of Bachner, Tally, Polevoy & Misher LLP,
with respect to the legality of the Common
Stock to be registered hereunder
10.2(b) 1992 Incentive and Non-Incentive Stock Option Plan, as amended
and restated
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Bachner, Tally, Polevoy & Misher LLP
(contained in Exhibit 5.1)
5
Exhibit 5.1
November 30, 1998
IntegraMed America, Inc.
One Manhattanville Road
Purchase, New York 10577
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as your counsel in connection with the
preparation of your Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, representing the offering and issuance to
certain persons under the IntegraMed America, Inc. 1992 Incentive and
Non-Incentive Stock Option Plan, as amended and restated (the "Plan") of an
aggregate of 175,000 shares of your Common Stock, $.01 par value (the "Common
Stock").
We have examined such corporate records, documents and matters
of law as we have considered appropriate for the purposes of this opinion.
Based upon such examination, it is our opinion that the Common
Stock, when issued in the manner described in the manner described in the Plan,
will be validly issued, fully paid and non-assessable.
We consent to the reference made to our firm in the
Registration Statement and to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bachner, Tally, Polevoy & Misher LLP
----------------------------------------
BACHNER, TALLY, POLEVOY & MISHER LLP
Exhibit 10.2(b)
1992 INCENTIVE AND NON-INCENTIVE
STOCK OPTION PLAN
OF
INTEGRAMED AMERICA, INC.
(As Amended and Restated on April 16, 1998)
(Gives Effect to the One-For-Four Reverse Stock Split Effective November 17,
1998)
1. Purpose of Plan.
The purpose of this 1992 Incentive and Non-Incentive Stock Option Plan
("Plan") is to further the growth and development of IntegraMed America, Inc.
(the "Company") its direct and indirect subsidiaries and the entities with which
the Company collaborates to deliver services (hereinafter "Collaborating
Entities") by encouraging selected employees, directors, consultants, agents,
independent contractors and other persons who contribute and are expected to
contribute materially to the Company's success to obtain a proprietary interest
in the Company through the ownership of stock, thereby providing such persons
with an added incentive to promote the best interests of the Company and
affording the Company a means of attracting to its service persons of
outstanding ability.
2. Stock Subject to the Plan.
An aggregate of 500,000 shares of the Company's Common Stock, $.01 par
value ("Common Stock"), subject, however, to adjustment or change pursuant to
paragraph 12 hereof, shall be reserved for issuance upon the exercise of options
which may be granted from time to time in accordance with the Plan ("Options").
Such shares may be, in whole or in part, as the Incentive and Non-Incentive
Stock Option Plan Committee ("Committee") shall from time to time determine,
authorized but unissued shares or issued shares which have been reacquired by
the Company. If, for any reason, an Option shall lapse, expire or terminate
without having been exercised in full, the unpurchased shares covered thereby
shall again be available for purposes of the Plan.
3. Administration.
(a) The Board of Directors shall appoint the Committee from among
its members. Such Committee shall be composed of two or more
Directors who shall be "disinterested persons" as defined by
Regulation 240.16b-3 under the Securities Exchange Act of
1934, as amended. Such Committee shall have and may exercise
any and all of the powers relating to the administration of
the Plan and the grant of Options thereunder as are set forth
in subparagraph 3(b) hereof. The Board of Directors shall have
the power at any time to fill vacancies in, to change the
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membership of, or to discharge such Committee. The Committee
shall select one of its members as its chairman and shall hold
its meetings at such time and at such places as it shall deem
advisable. A majority of such Committee shall constitute a
quorum and such majority shall determine its action. Any
action may be taken without a meeting by written consent of
all the members of the Committee. The Committee shall keep
minutes of its proceedings and shall report the same to the
Board of Directors at the meeting next succeeding.
(b) The Committee shall administer the Plan and, subject to the
provisions of the Plan, shall have sole authority in its
discretion to determine the persons to whom, and the time or
times at which, Options shall be granted, the number of shares
to be subject to each such Option and whether all or any
portion of such Options shall be incentive stock options
("Incentive Options") qualifying under Section 422 of the
Internal Revenue Code of 1986, as amended ("Code"), or stock
options which do not so qualify ("Non-Incentive Options").
Both Incentive Options and Non-Incentive Options may be
granted to the same person at the same time provided each type
of Option is clearly designated. In making such
determinations, the Committee may take into account the nature
of the services rendered by such persons, their present and
potential contributions to the Company's success and such
other factors as the Committee in its sole discretion may deem
relevant. Subject to the express provisions of the Plan, the
Committee shall also have the authority to interpret the Plan,
to prescribe, amend and rescind rules and regulations relating
thereto, to determine the terms and provisions of the
respective Option Agreements, which shall be substantially in
the forms attached hereto as Exhibit A and Exhibit B, and to
make all other determinations necessary or advisable for the
administration of the Plan, all of which determinations shall
be conclusive and not subject to review.
4. Eligibility for Receipt of Options.
(a) Incentive Options.
Incentive Options may be granted only to employees (including
officers) of the Company and/or any of its subsidiaries.
The aggregate Fair Market Value (as defined in paragraph 5 of
this Plan) determined as of the time the Incentive Option is
granted of the shares of the Company's Common Stock
purchasable thereunder exercisable for the first time by an
employee during any calendar year may not exceed $100,000.
A director of the Company or any subsidiary who is not an
employee of the Company or of one of its subsidiaries is not
eligible to receive Incentive Options under the Plan. Further,
Incentive Options may not be granted to any person who,
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at the time the Incentive Option is granted, owns (or is
considered as owning within the meaning of Section 424(d) of
the Code) stock possessing more than 10% of the total combined
voting powers of all classes of stock of the Company or any
subsidiary (10% Owner), unless at the time the Incentive
Option is granted to a 10% Owner, the option price is at least
110% of the fair market value of the Common Stock subject
thereto and such Incentive Option by its terms is not
exercisable subsequent to five years from the date of grant.
(b) Non-Incentive Options.
(i) Non-Incentive Options may be granted to any employee
(including employees who have been granted Incentive
Options), directors, consultants, agents, independent
contractors and other persons whom the Committee
determines will contribute to the Company's success.
(b) Directors of the Company who are not full-time
employees of the Company and receiving compensation
as such (an "Outside Director"), will receive a
Non-Incentive Option ("Director Option") exercisable
to purchase 7,500 shares of Common Stock immediately
following the initial election or appointment of such
Outside Director. The exercise price for each share
subject to the Director Option shall be equal to the
"Fair Market Value" of the Common Stock on the date
of grant (which, if the Common Stock is traded on the
Nasdaq National Market or on a national securities
exchange, shall be the closing sale price of the
Common Stock on the Nasdaq National Market or such
national securities exchange on the business day
immediately preceding the date of such election or
appointment, as the case may be, or on the next
preceding date on which the Common stock is traded if
no Common Stock was traded on such immediately
preceding business day; otherwise, Fair Market Value
shall be determined by the Board of Directors in the
manner otherwise described in Section 5 of this
Plan). Director Options shall become exercisable in
an amount equal to 25% of the total number of shares
subject to the Director Option exercisable one year
following the date of grant and the balance
exercisable at the rate of 6.25% of the total number
of shares subject to the Director Option every three
months thereafter, and will expire the earlier of 10
years from the date of grant or 90 days after the
termination of such Outside Director's service on the
Board of Directors; provided, however, that such
Director Options will vest immediately upon a "Change
in Control" of the Company. The term "Change in
Control" is defined to mean any one or more changes
in the aggregate composition of the Board of
Directors as a result of which individuals
constituting the Board of Directors on July 26, 1994
(the "Incumbent Board"), cease to constitute a
majority of the Board of
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Directors; provided, however, that any individual
elected to the Board by, or nominated for election
by, a majority of the then current Incumbent Board
(except if such person assumes office by reason of an
actual or threatened election contest) is deemed to
be a member of the current Incumbent Board. Further,
no Change in Control will be deemed to occur as a
result of an event or events approved by the Chief
Executive Officer of the Company.
(iii) the provisions of Section 4(b)(ii) shall not be
amended, if at all, more than once every six months
other than to comport with changes in the Code or the
rules thereunder.
5. Option Price.
The purchase price of the shares of Common Stock under each Option
shall be determined by the Committee, which determination shall be conclusive
and not subject to review. In no event shall the purchase price of shares of
Common Stock under an Incentive Option be less than 100% of the fair market
value of the Common Stock on the date of grant (110% of fair market value in the
case of Incentive Options granted to a 10% Owner).
In determining the fair market value of the Common Stock as of a
specified date (the "Fair Market Value"), the Committee shall consider, if the
Common Stock is listed on the New York Stock Exchange or another national
securities exchange, the closing price of the Common Stock on the business day
immediately preceding the date as of which the Fair Market Value is being
determined, or on the next preceding date on which such Common Stock is traded
if no Common Stock was traded on such immediately preceding business day, or, if
the Common Stock is not so listed on a national securities exchange, but
publicly traded, the representative closing bid price in the over-the-counter
market as reported by NASDAQ or as quoted by the National Quotation Bureau or a
recognized dealer in the Common Stock, on the date immediately preceding the
date as of which the Fair Market Value is being determined, or on the next
preceding date on which such Common Stock is traded if no Common Stock was
traded on such immediately preceding business day. The Committee may also
consider such other factors as it shall deem appropriate.
For purposes of the Plan, the date of grant of an Option shall be the
date on which the Committee shall by resolution duly authorize such Option.
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6. Term of Options.
(a) Incentive Options.
The term of each Incentive Option shall be ten years (five
years in the case of a 10% Owner) from the date of grant
thereof, or such shorter period as the Committee shall
determine, subject to earlier termination as herein provided.
(b) Non-Incentive Options.
The term of each Non-Incentive Option shall be such number of
years as the Committee shall determine, subject to earlier
termination as herein provided.
7. Exercise of Options.
(a) The Committee shall determine the dates upon which any Option
granted under the Plan shall be exercisable, provided,
however, no Incentive Option shall be exercisable until at
least one year after the date of grant.
An Option may not be exercised for less than ten shares at any
one time (or the remaining shares then purchasable if less
than ten) and may not be exercised for fractional shares of
the Company's Common Stock.
(b) Except as provided in paragraphs 9, 10 and 11 hereof, no
Option shall be exercisable unless the holder thereof shall
have been an employee, director, consultant, agent,
independent contractor or other person employed by or engaged
in performing services for the Company and/or a subsidiary,
either directly or through a Collaborating Entity,
continuously from the date of grant to the date of exercise.
(c) The exercise of an Option shall be contingent upon receipt
from the holder thereof of a written representation that at
the time of such exercise it is the optionee's then present
intention to acquire the Option shares for investment and not
with a view to the distribution or resale thereof (unless a
Registration Statement covering the shares purchasable shall
have been declared effective by the Securities and Exchange
Commission) and upon receipt by the Company of cash, or a
check to its order, for the full purchase price of such
shares; plus any amount, if any, as is required for
withholding taxes; provided, however, that with the consent of
the Committee or such officer of the Company as may be
authorized by the Committee from time to time, the purchase
price and such amount, if any, as is required for withholding
taxes may be paid by the surrender of Common Stock in good
form for transfer owned by the person exercising the Option
and having a Fair Market Value on the date of exercise equal
to the purchase price and such amount, if any, as is required
for withholding taxes, or in any combination of cash and
Common Stock so long as the total of the cash so paid and the
Fair Market Value of the Common Stock surrendered equals the
purchase price and such amount, if any, as is required for
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withholding taxes, and the Common Stock so surrendered, if
originally issued to the optionee upon exercise of an option
granted by the Company, shall have been held by the optionee
for more than six (6) months. Any Common Stock delivered in
satisfaction of all or any portion of the purchase price shall
be appropriately endorsed for transfer and assignment to the
Company. No shares shall be issued until full payment therefor
has been made, and any withholding obligations of the Company
have been satisfied.
(d) The holder of an Option shall have none of the rights of a
stockholder with respect to the shares purchasable upon
exercise of the Option until a certificate for such shares
shall have been issued to the holder upon due exercise of the
Option.
(e) The proceeds received by the Company upon exercise of an
Option shall be added to the Company's working capital and be
available for general corporate purposes.
8. Non-Transferability of Options.
No option granted pursuant to the Plan shall be transferable otherwise
than by will or the laws of descent or distribution and an Option may be
exercised during the lifetime of the holder only by such holder.
9. Termination of Employment or Engagement.
In the event the employment of the holder of an Option shall be
terminated by the Company or a subsidiary for any reason other than by reason of
death or disability, or the engagement of a non-employee holder of a
Non-Incentive Option shall be terminated by the Company or a subsidiary or the
employment of an employee of a Collaborating Entity shall be terminated for any
reason, or an Outside Director holder of a Non-Incentive Option shall cease to
serve as a director of the Company for any reason, such holder's Option, and his
rights to exercise such Option shall terminate, lapse and expire effective the
date falling three months after termination of such employment, engagement or
director status. Absence on leave approved by the employer corporation shall not
be considered an interruption of employment for any purpose under the Plan.
Notwithstanding the foregoing, no Option may be exercised subsequent to the date
of its expiration.
Nothing in the Plan or in any Option Agreement granted hereunder shall
confer upon any Optionholder any right to continue in the employ of the Company
or any subsidiary or obligate the Company or any subsidiary to continue the
engagement of any Optionholder or interfere in any way with the right of the
Company or any such subsidiary to terminate such Optionholder's employment or
engagement at any time.
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10. Disability of Holder of Option.
If the employment of the holder of an Option shall be terminated by
reason of such holder's disability, such holder may, within one year from the
date of such termination, exercise such Option to the extent such Option was
exercisable by such holder at the date of such termination. Notwithstanding the
foregoing, no Option may be exercised subsequent to the date of its expiration.
11. Death of Holder of Option.
If the holder of any Option shall die while in the employ of, or while
performing services for, the Company or one or more of its subsidiaries (or
within six months following termination of employment due to disability or
within three months following termination of employment for any other reason),
the Option theretofore granted to such person may be exercised, but only to the
extent such Option was exercisable by the holder at the date of death (or, with
respect to employees, the date of termination of employment due to disability)
by the legatee or legatees of such person under such person's Last Will, or by
such person's personal representative or distributees, within one year from the
date of death but in no event subsequent to the expiration date of the Option.
12. Adjustments Upon Changes in Capitalization.
If at any time after the date of grant of an Option, the Company shall
by stock dividend, split-up, combination, reclassification or exchange, or
through merger or consolidation or otherwise, change its shares of Common Stock
into a different number or kind or class of shares or other securities or
property, then the number of shares covered by such Option and the price per
share thereof shall be proportionately adjusted for any such change by the
Committee, whose determination thereon shall be conclusive. In the event that a
fraction of a share results from the foregoing adjustment, said fraction shall
be eliminated and the price per share of the remaining shares subject to the
Option adjusted accordingly.
13. Option Agreements.
Notwithstanding anything contained in the Plan or in any resolution
adopted or to be adopted by the Committee or the stockholders of the Company, no
rights under any Option may be asserted unless and until a written Option
Agreement, substantially in the form of the Incentive Stock Option Agreement
attached hereto as Exhibit A or the Non-Incentive Stock Option Agreement
attached hereto as Exhibit B, shall be duly executed and delivered by and on
behalf of the Company and the person to whom the Option shall be granted.
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14. Termination and Amendment.
This Plan shall terminate on April 30, 2002, and no Option shall be
granted under the Plan after such date. The Board of Directors may at any time
prior to such date terminate the Plan or make such modifications or amendments
thereto as it shall deem advisable provided, however, that
(i) no increase shall be made in the aggregate number of
shares which may be issued under the Plan;
(ii) no termination, modification or amendment shall
adversely affect the rights of a holder of an Option
previously granted under the Plan;
(iii) no material modification shall be made to the
requirements of eligibility for participation in the
Plan; and
(iv) no material increase shall be made in the benefits
accruing to participants under the Plan.
15. Acceleration, Extension, Etc. The Board of Directors may, in its sole
discretion, (i) accelerate the date or dates on which all or any particular
option or options granted under the Plan may be exercised or (ii) extend the
dates during which all, or any particular, options or options granted under the
Plan may be exercised; provided, however, that no such extension shall be
permitted if it would cause the Plan to fail to comply with Section 422 of the
Code or with Rule 16b-3 (if applicable).
-8-
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of IntegraMed America, Inc. of our report
dated February 16, 1998 appearing on page F-2 of the IntegraMed America, Inc.
Annual Report on Form 10-K for the year ended December 31, 1997. We also consent
to the incorporation by reference of our report on the Financial Statement
Schedule, which appears on page S-1 of such Annual Report on Form 10-K.
PricewaterhouseCoopers LLP
Stamford, CT
December 1, 1998
