AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 29, 1997.
REG. 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
PROXYMED, INC.
(Exact name of registrant as specified in its charter)
Florida 65-0202059
(State of incorporation) (I.R.S. Employer Identification Number)
2501 Davie Road, Suite 230
Fort Lauderdale, Florida 33317-7424
(Address, including zip code, of Principal Executive Offices)
EMPLOYEE NONQUALIFIED STOCK OPTION AGREEMENT
(Full titles of the Plans)
HAROLD S. BLUE
2501 Davie Road, Suite 230
Fort Lauderdale, Florida 33317-7424
(Name and address of agent for service)
(954) 473-1001
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(Telephone number, including area code, of agent for service)
COPIES TO:
ROBERT B. MACAULAY, ESQ.
OLLE, MACAULAY & ZORRILLA, P.A.
1402 MIAMI CENTER
201 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131
CALCULATION OF REGISTRATION FEE
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Title of Proposed
Securities Amount Proposed Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share (1) Offering Price(1) Fee
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Common Stock 60,000 $6.94 $416,400 $126.18
$.001
par value(1)
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(1) Pursuant to Rule 416, this Registration Statement also covers such
additional shares of the Registrant's Common Stock as may become
issuable pursuant to the antidilution provisions of the subject
agreement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by ProxyMed, Inc. (the "Company") with
the Securities and Exchange Commission (the "Commission") are incorporated by
reference into this Registration Statement and are made a part hereof:
(a) The Company's annual report on Form 10-KSB for the
year ended December 31, 1996.
(b) The Company's quarterly reports on Form 10-QSB for the
three and six months ended March 31 and June 30, 1997.
(c) The Company's current reports on Forms 8-K and 8-K/A dated
March 21, April 21, May 9, July 2, July 9 and August 27, 1997; and
(d) The description of the Company's Common Stock
contained in its Registration Statement on Form 8-A declared
effective on August 15, 1993.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), after the date of this Registration Statement and prior to the filing of
a post-effective amendment indicating that all of the securities offered hereby
have been sold, or deregistering all such securities then remaining unsold,
shall be deemed to be incorporated by reference and to be a part hereof from the
date of filing of such documents. 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 which also is incorporated or deemed incorporated by reference herein
modifies or supersedes such statement. Any such document so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
The making of a modifying or superseding statement shall not be deemed
an admission that the modified or superseded statement, when made, constituted a
misrepresentation, an untrue statement of a material fact or an omission to
state a material fact that is required to be stated or that is necessary to make
a statement not misleading in light of the circumstances in which it was made.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 607.0850 of the Florida Business Corporation Act empowers a
Florida corporation to indemnify any person who was or is a party to any
proceeding (other than an action by or in the right of such corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including an appeal thereof, if
such person acted in good faith and in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, such person had no reasonable cause to believe
his conduct was unlawful. A Florida corporation may indemnify such person
against expenses including amounts paid in settlement (not exceeding in the
judgment of the board of directors, the estimated expense of litigating the
proceeding to conclusion) actually and reasonably incurred by such person in
connection with actions brought by or in the right of the corporation to procure
a judgment in its favor under the same conditions set forth above, if such
person acted in good faith and in a manner such person believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification is permitted in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and to the extent the court in which such action or suit was brought or
other court of competent jurisdiction shall determine upon application that, in
view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper.
To the extent such person has been successful on the merits or
otherwise in defense of any action referred to above, or in defense of any
claim, issue or matter therein, the corporation must indemnify such person
against expenses, including counsel (including those for appeal) fees, actually
and reasonably incurred by such person in connection therewith. The
indemnification and advancement of expenses provided for in, or granted pursuant
to, Section 607.0850 is not exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under the articles of
incorporation of the corporation or any by-law, agreement, vote of shareholders
or disinterested directors, or otherwise. Section 607.0850 also provides that a
corporation may maintain insurance against liabilities for which indemnification
is not expressly provided by the statute.
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Article VII of the Company's Restated Articles of Incorporation and
Article VII of the Company's By-Laws provide for indemnification of the
directors, officers, employees and agents of the Company (including advancement
of expenses) to the fullest extent permitted under Florida law. In addition, the
Company has contractually agreed to indemnify its directors and officers to the
fullest extent permitted under Florida law.
The Company's employment agreements with its principal executive
officers limit their personal liability for monetary damages for breach of their
fiduciary duties as officers and directors, except for liability that cannot be
eliminated under the Florida Business Corporation Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the Exhibit Index which is included in this
Registration Statement following the Signature Page.
ITEM 9. UNDERTAKINGS.
(a) The Registrant hereby undertakes that it will:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to:
(i) include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information in the registration statement;
(iii) include any additional or changed material
information on the plan of distribution;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
in a post-effective amendment is incorporated by reference from periodic reports
filed by the Registrant under the Exchange Act.
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial BONA
FIDE offering.
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(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of
the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets 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 Fort Lauderdale, Florida, on this 29th day of August,
1997.
PROXYMED, INC.
BY: /s/ HAROLD S. BLUE
----------------------
HAROLD S. BLUE, CHAIRMAN OF THE
BOARD AND CHIEF EXECUTIVE
OFFICER
Each person whose signature appears below hereby constitutes and
appoints Harold S. Blue and Bennett Marks, and each of them, with full power to
act without the other, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities (until revoked in writing) to sign any and all
amendments (including post-effective amendments and amendments thereto) to this
Registration Statement on Form S-8 of the Registrant 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, and each of them, full power and authority to do and
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perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully for all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or any of them, or his substitute or 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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
<S> <C> <C>
/s/ HAROLD S. BLUE Chairman of the Board August 29, 1997
- ----------------------
Harold S. Blue and Chief Executive
Officer (principal
executive officer)
/s/ JOHN PAUL GUINAN President and Director August 29, 1997
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John Paul Guinan
/s/ GARY N. MANSFIELD Executive Vice President August 29, 1997
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Gary N. Mansfield - Business Development
and Director
/s/ BENNETT MARKS Executive Vice President, August 29, 1997
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Bennett Marks Chief Financial Officer
and Director (principal
financial and accounting
officer)
/s/ HARRY A. GAMPEL Director August 29, 1997
- -----------------------
Harry A. Gampel
/s/ SAMUEL X. KAPLAN Director August 29, 1997
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Samuel X. Kaplan
/s/ BERTRAM J. POLAN Director August 29, 1997
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Bertram J. Polan
/s/ EUGENE R. TERRY Director August 29, 1997
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Eugene R. Terry
</TABLE>
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5 Opinion of Olle, Macaulay & Zorrilla, P.A.
23.1 Consent of Olle, Macaulay & Zorrilla, P.A. (contained in
Exhibit 5 of this Registration Statement)
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Eichen & DiMeglio, P.C.
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EXHIBIT 5
OLLE, MACAULAY & ZORRILLA, P.A.
1402 MIAMI CENTER
201 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131
(305) 358-9200
FAX (305) 358-9617
August 29, 1997
ProxyMed, Inc.
2501 Davie Road
Suite 230
Ft. Lauderdale, FL 33317
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have acted as counsel to ProxyMed, Inc., a Florida corporation (the
"Company"), in connection with the preparation and filing of the Registration
Statement on Form S-8 (the "Registration Statement") filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), relating to 60,000 shares of the Company's
Common Stock, $.001 par value per share (the "Common Stock"), that are offered
pursuant to an employee Stock Option Agreement dated as of November 11, 1996, as
amended as of August 29, 1997, between the Company and Jeffrey Backerman (the
"Agreement"). You have requested the opinion of this firm with respect to
certain legal aspects of the proposed offering of Common Stock pursuant to the
Agreement.
We have examined original, photostatic or certified copies of such
records of the Company, including the Articles of Incorporation, the Bylaws and
minutes, the Registration Statement and other documents as we have deemed
relevant and necessary for purposes of the opinions hereinafter set forth. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents and instruments submitted to us as originals and
the conformity to authentic originals of all documents and instruments submitted
to us as certified or photostatic copies. As to various questions of fact
material to our opinions, we have relied upon representations made to us by
various officers and directors of the Company and we have not conducted or
received independent verification of those facts.
Based upon the foregoing and subject to the comments and exceptions
noted below, we are of the opinion that the Company
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ProxyMed, Inc.
August 29, 1997
Page 10
presently has available at least 60,000 authorized but unissued shares and/or
treasury shares of Common Stock from which may be issued the 60,000 shares of
Common Stock proposed to be sold pursuant to the Agreement. Assuming that the
Company maintains an adequate number of authorized but unissued shares and/or
treasury shares of Common Stock available for issuance to Mr. Backerman as set
forth in the Agreement and assuming that the consideration for the shares of
Common Stock issued is actually received by the Company as provided in the
Agreement, then the shares of Common Stock issued pursuant to the Agreement will
be legally and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the
Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
OLLE, MACAULAY & ZORRILLA, P.A.
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8 of our report dated February 25, 1997, on our audits of the
consolidated financial statements of ProxyMed, Inc. as of December 31, 1996 and
for the years ended December 31, 1996 and 1995, appearing in the Annual Report
on Form 10-KSB of ProxyMed, Inc. filed with the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934. We also consent to
the incorporation by reference in this registration statement on Form S-8 of our
report dated April 14, 1997, on our audit of the financial statements of Hayes
Computer Systems, Inc., as of January 31, 1997 and for the ten month period then
ended, appearing in the current report on Form 8-K of ProxyMed, Inc. dated April
30, 1997 filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934. We also consent to the reference to our firm
under the caption "Experts."
/s/Coopers & Lybrand L.L.P.
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Miami, Florida
August 28, 1997
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EXHIBIT 23.3
E&D EICHEN & DIMEGLIO, P.C.
CERTIFIED PUBLIC ACCOUNTANTS
1 DUPONT STREET
PLAINVIEW, NEW YORK 11803
TEL. (516) 576-3333
FAX (516) 576-3342
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
ProxyMed, Inc. and Subsidiaries:
We consent to the incorporation by reference in the Registration Statement of
ProxyMed, Inc., and subsidiaries on Form S-8 of our report, dated February 28,
1997, on our audits of the financial statements of Clinical MicroSystems, Inc.,
as of December 31, 1996 and 1995 and for the years then ended, which report is
included in ProxyMed, Inc.'s Form 8-K/A dated April 21, 1997. We also consent to
the reference to us under the heading "Experts" in the Prospectus which is part
of this Registration Statement.
/s/Eichen & DiMeglio, P.C.
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August 28, 1997
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