AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 17, 1998.
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)
1997 STOCK OPTION PLAN,
EMPLOYEE AND CONSULTANT NONQUALIFIED STOCK OPTION AGREEMENTS
(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
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
ROBERT B. MACAULAY, ESQ.
MACAULAY, ZORRILLA & ROBIN, 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 TO BE PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED (1), (2) PER SHARE (3) OFFERING PRICE FEE
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Common Stock 737,934 $11.13 $8,213,205.40 $2,422.90
$.001
par value
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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 plan
and agreements.
(2) Includes 250,000 shares issuable pursuant to options granted and to be
granted under the Company's 1997 Stock Option Plan and 487,934 shares
issuable under nonqualified stock options which were granted outside of
the Company's stock option plans to certain employees and consultants
upon their hire.
(3) Estimated solely for the purpose of calculating the registration fee
and computed in accordance with Rule 457(h)(1) on the basis of the
highest exercise price of the outstanding options covered by this
Registration Statement.
<PAGE>
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-K for the year
ended December 31, 1997.
(b) 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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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.
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.
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<PAGE>
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 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; (ii) to reflect
in the prospectus any facts or events arising after the effective date of this
Registration Statement (or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a fundamental change in the
information in this Registration Statement; (iii) to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
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 Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining liability under the Securities
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
the offering.
(b) The undersigned Registrant hereby undertakes that, for the purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and each filing of the
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<PAGE>
Plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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) Insofar as indemnification for liabilities arising under the
Securities 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 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 Securities 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 16th day of April,
1998.
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
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<PAGE>
Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and 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 April 16, 1998
Harold S. Blue and Chief Executive
Officer (principal
executive officer)
/S/ JOHN PAUL GUINAN
- ----------------------- President and Director April 16, 1998
John Paul Guinan
/S/ BENNETT MARKS
- ----------------------- Executive Vice President, April 16, 1998
Bennett Marks Chief Financial Officer
and Director (principal
financial and accounting
officer)
/S/ HARRY A. GAMPEL
- ----------------------- Director April 16, 1998
Harry A. Gampel
/S/ SAMUEL X. KAPLAN
- ----------------------- Director April 16, 1998
Samuel X. Kaplan
/S/ BERTRAM J. POLAN
- ----------------------- Director April 16, 1998
Bertram J. Polan
/S/ EUGENE R. TERRY
- ----------------------- Director April 16, 1998
Eugene R. Terry
</TABLE>
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<PAGE>
EXHIBIT INDEX
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NO.
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5 Opinion of Macaulay, Zorrilla & Robin, P.A.
23.1 Consent of Macaulay, Zorrilla & Robin, P.A.
(contained in Exhibit 5 of this
Registration Statement).
23.2 Consent of Coopers & Lybrand L.L.P.
EXHIBIT 5
MACAULAY, ZORRILLA & ROBIN, P.A.
1402 MIAMI CENTER
201 SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131
(305) 358-9200
FAX (305) 358-9617
April 16, 1998
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 737,934 shares of the Company's
Common Stock, $0.001 par value per share (the "Common Stock"), 250,000 of which
are offered pursuant to the Company's 1997 Stock Option Plan (the "Plan") and
487,934 of which are offered pursuant to nonqualified stock option agreements
between the Company and certain current and former employees and consultants
(the "Agreements"). You have requested the opinion of this firm with respect to
certain legal aspects of the proposed offering of Common Stock pursuant to the
Plan and the Agreements.
We have examined original, photostatic or certified copies of such
records of the Company, including the Plan, the form of the Agreements, 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 (i) the Company presently has available
at least 737,934 authorized but unissued shares and/or treasury shares of Common
Stock from which may be issued the 737,934 shares of Common Stock proposed to be
sold pursuant to the Plan and the Agreements, and (ii) assuming that the
<PAGE>
Company maintains an adequate number of authorized but unissued shares and/or
treasury shares of Common Stock available for issuance as set forth in the Plan
and the Agreements and assuming that the consideration for the shares of Common
Stock issued is actually received by the Company as provided in the Plan and the
Agreements, then the shares of Common Stock issued pursuant to the Plan and the
Agreements 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,
/S/ Macaulay, Zorrilla & Robin, P.A.
------------------------------------
MACAULAY, ZORRILLA & ROBIN, 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 24, 1998, on our audits of the
consolidated financial statements and financial statement schedule of ProxyMed,
Inc. and subsidiaries as of December 31, 1997 and 1996, and for each of the
three years ended December 31, 1997, which reports appear in the Annual Report
on Form 10-K of ProxyMed, Inc. and subsidiaries for the fiscal year ended
December 31, 1997 filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934.
/S/ COOPERS & LYBRAND L.L.P.
- -----------------------------
Coopers & Lybrand L.L.P.
Miami, Florida
April 16, 1998
