As filed with the Securities and Exchange Commission on October 3, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MATRIA HEALTHCARE, INC.
(AND CERTAIN SUBSIDIARIES IDENTIFIED IN FOOTNOTE (*) BELOW)
(Exact name of issuer as specified in its charter)
DELAWARE 8082 58-2205984
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification Number)
organization) Code Number)
1850 PARKWAY PLACE
MARIETTA, GEORGIA 30067
(770) 767-4500
(Address, including zip code, and telephone
number, including area code, of registrant's principal
executive offices)
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ROBERTA L. MCCAW
MATRIA HEALTHCARE, INC.
1850 PARKWAY PLACE, 12TH FLOOR
MARIETTA, GEORGIA 30067
(770) 767-4500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
JAMES L. SMITH, III, ESQUIRE
TROUTMAN SANDERS LLP
600 PEACHTREE STREET, SUITE 5200
ATLANTA, GEORGIA 30308-2216
(404)885-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
=======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED (1) UNIT (2) PRICE (1)(3) FEE (2)
--------------------------- -------------- ------------------ ------------------ ------------
Common Stock (4)(5)
Preferred Stock (5)
Debt Securities and
Related Guarantees (5)(7)
Depositary Shares (6)
Warrants (5)
Units (5)
Total $150,000,000 100% $150,000,000 $12,135
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(1) The aggregate initial offering price of the above-referenced securities
(collectively, the "Securities") registered hereby will not exceed
$150,000,000. Such amount represents the issue price of any Common
Stock, the liquidation preference (or, if different, the issue price)
of any Preferred Stock, the principal amount of any Debt Securities
issued at their principal amount, the issue price rather than the
principal amount of any Debt Securities issued at an original issue
discount, the issue price of any Warrants (but not the exercise price
of any Securities issuable upon the exercise of such Warrants), and the
issue price of any Units.
(2) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o). The proposed maximum offering price will be
determined from time to time by us in connection with our issuance of
the Securities registered in this registration statement.
(3) No separate consideration will be received for (a) any Depositary
Shares representing shares of Preferred Stock or (b) any Debt
Securities, Preferred Stock, Common Stock or other securities that may
be issuable upon conversion of or in exchange for convertible or
exchangeable securities (including any securities issuable upon stock
splits and similar transactions pursuant to Rule 416).
(4) Includes associated rights to purchase a fraction of a share of our
Common Stock.
(5) Includes such indeterminate number of shares of Common Stock, such
indeterminate number of shares of Preferred Stock, such indeterminate
number of Debt Securities, such indeterminate number of Warrants, such
indeterminate number of Units, and such indeterminate amount of
securities as may be issued upon conversion of, or in exchange for, or
upon exercise of, convertible or exchangeable securities (including any
securities issuable upon stock splits and similar transactions pursuant
to Rule 416 under the Securities Act of 1933) as may be offered
pursuant to this registration statement.
(6) Includes such indeterminate number of Depositary Shares as may be
evidenced by Depositary Receipts issued pursuant to one or more Deposit
Agreements. In the event the registrant elects to offer to the public
fractional interests in shares of the Preferred Stock registered
hereunder, Depositary Receipts will be distributed to those persons
acquiring such fractional interests and the shares of Preferred Stock
will be issued to a Depositary under a Deposit Agreement.
(7) We are registering an indeterminate amount of Guarantees of the Debt
Securities referred to above by the co-registrants named herein. No
additional consideration will be received for the Guarantees, if any,
of the Debt Securities. Pursuant to Rule 457(n) under the Securities
Act, no additional filing fee is required in connection with such
Guarantees of the Debt Securities.
(*) The following direct and indirect domestic subsidiaries of Matria are
co-registrants for the purpose of providing guarantees, if any, of
payments of Debt Securities registered hereunder and are, unless
otherwise indicated, organized under the laws of the State of Georgia
and have the I.R.S. Employer Identification Number indicated: Diabetes
Acquisition, Inc. (58-2435656); Gainor Medical Acquisition Company
(58-2366341); Matria Healthcare of Illinois, Inc. (58-2068880); Facet
Technologies, LLC (58-2180675); Diabetes Self Care, Inc., a Virginia
corporation (54-1432116); Quality Oncology, Inc., a Delaware
corporation (54-1776557); Diabetes Management Solutions, Inc., a
Delaware corporation (54-1831718); Matria of New York, Inc., a New York
corporation (58-1873062); Matria Laboratories, Inc. a Delaware
corporation (37-1417957); MarketRing.com, Inc. (58-2392832).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THE REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. MATRIA
HEALTHCARE, INC. MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS
IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO
BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED OCTOBER 3, 2003
PROSPECTUS
MATRIA HEALTHCARE, INC.
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
UNITS
We may offer from time to time the following types of securities:
o shares of our common stock;
o shares of our preferred stock, which may be issued in the form
of depositary receipts representing a fraction of a share of
preferred stock;
o our debt securities in one or more series, which may be senior
debt securities or subordinated debt securities, in each case
consisting of notes or other evidences of indebtedness;
o warrants to purchase any of the securities that may be sold
under this prospectus; or
o any combination of these units individually or as units.
The securities will have an aggregate initial offering price of up to
$150,000,000 or an equivalent amount in U.S. dollars if any securities are
denominated in a currency other than U.S. dollars. The securities may be offered
separately or together in any combination and as a separate series. This
prospectus also covers guarantees, if any, of our payment obligations under any
debt securities, which may be given by certain of our subsidiaries, on terms to
be determined at the time of the offering.
We will provide specific terms of these securities in supplements to
this prospectus. You should read this prospectus and any prospectus supplement,
as well as the documents incorporated or deemed to be incorporated by reference
in this prospectus, carefully before you invest.
Our common stock is traded on the Nasdaq National Market under the
symbol "MATR."
OUR BUSINESS INVOLVES SIGNIFICANT RISKS AND UNCERTAINTIES. THESE RISKS
ARE DESCRIBED UNDER THE CAPTION "RISK FACTORS" BEGINNING ON PAGE 4.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE
SECURITIES OR PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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We may sell these securities directly, through agents, dealers or
underwriters as designated from time to time, or through a combination of these
methods. We reserve the sole right to accept, and together with our agents,
dealers and underwriters reserve the right to reject, in whole or in part, any
proposed purchase of securities to be made directly or through agents, dealers
or underwriters. If any agents, dealers or underwriters are involved in the sale
of any securities, the relevant prospectus supplement will set forth any
applicable commissions or discounts. Our net proceeds from the sale of
securities also will be set forth in the relevant prospectus supplement.
This prospectus may not be used to consummate sales of securities
unless accompanied by the applicable prospectus supplement.
The date of this prospectus is _________, 2003.
TABLE OF CONTENTS
About This Prospectus...............................................2
Forward-Looking Statements..........................................2
Risk Factors........................................................4
The Company........................................................11
Use of Proceeds....................................................11
Ratio of Earnings to Fixed Charges.................................11
Dividend Policy....................................................11
General Description of Securities That We May Sell.................12
Description of Common Stock........................................12
Description of Preferred Stock.....................................13
Description of Depositary Shares...................................16
Description of Debt Securities.....................................19
Description of Warrants............................................28
Description of Units...............................................30
Plan of Distribution...............................................30
Legal Matters......................................................32
Experts............................................................32
Where You Can Find More Information................................32
Documents Incorporated by Reference................................33
We have not authorized any person to give any information or to make
any representation in connection with this offering other than those contained
or incorporated by reference in this prospectus, and, if given or made, the
information or representation must not be relied upon as having been authorized
by us. This prospectus does not constitute an offer to sell nor a solicitation
of an offer to buy by anyone in any jurisdiction in which the offer or
solicitation is not authorized or in which the person is not qualified to do so
or to any person to whom it is unlawful to make the offer or solicitation.
Neither the delivery of this prospectus nor any sale under this prospectus
shall, under any circumstances, create any implication that there has been no
change in our affairs since the date of this prospectus, that the information
contained in this prospectus is correct as of any time subsequent to its date,
or that any information incorporated by reference in this prospectus is correct
as of any time subsequent to its date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission, or the SEC, using a "shelf" registration
process. Under this shelf process, we may from time to time sell any combination
of the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. If there is any inconsistency between
the information in this prospectus and the applicable prospectus supplement, you
should rely on the information in the prospectus supplement. Before you invest,
you should carefully read both this prospectus and the prospectus supplement
including the additional information incorporated by reference and described
below under the heading "Where You Can Find More Information."
You should rely only on the information provided in this prospectus and
in any prospectus supplement, including the information we incorporate by
reference. Neither we nor any underwriters or agents have authorized anyone to
provide you with different information. If anyone provides you with different
information, you should not rely on it. We are not offering the securities in
any jurisdiction where the offer is not permitted. You should not assume that
the information in this prospectus or in any supplement to this prospectus,
including any document incorporated by reference, is accurate at any date other
than the date indicated on the cover page of the documents.
Unless otherwise mentioned or unless the context requires otherwise,
all references in this prospectus to "Matria," "we," "us," "our" or similar
references mean Matria Healthcare, Inc. and its subsidiaries.
FORWARD-LOOKING STATEMENTS
This prospectus, the prospectus supplement and the documents
incorporated by reference herein, contain various forward-looking statements.
Such forward-looking statements include statements relating to the business,
results of operations, and financial condition of Matria. Words such as "will,"
"would," "may, " "could, " "anticipate," "expects," "intends," "plans,"
"believes, " "seeks, " "estimates" and similar expressions often identify
forward-looking statements.
These forward-looking statements involve risks and uncertainties, and
are not guarantees of our future performance. Many factors, some of which are
described in the "Risk Factors" section of this document or in the documents
incorporated by reference into this document, could cause actual results to
differ materially from those contemplated by the forward-looking statements.
These factors include the following:
o changes in reimbursement rates, policies or payment practices
by third-party payors, whether initiated by the payor or
legislatively mandated;
o the loss of major payors or customers or failure to receive
recurring orders from customers of the mail-order supply
business;
o termination of our exclusive supply agreement with Nipro
Corporation or failure to continue the agreement on the terms
currently in effect;
o impairment of our rights in intellectual property;
o increased or more effective competition;
o new technologies that render obsolete or non-competitive
products and services offered by us;
o changes in or new interpretations of laws or regulations
applicable to us, our customers or referral sources or failure
to comply with existing laws and regulations;
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o increased exposure to professional negligence liability;
o difficulties in successfully integrating recently acquired
businesses into our operations and uncertainties related to
the future performance of such businesses;
o losses due to foreign currency exchange rate fluctuations or
deterioration of economic conditions in foreign markets;
o changes in company-wide or business unit strategies and
changes in patient drug therapy mix;
o the effectiveness of our advertising, marketing and
promotional programs;
o market acceptance of our disease management products and our
ability to sign and implement new disease management
contracts;
o our inability to successfully manage our growth;
o acquisitions that strain our financial and operational
resources;
o our inability to forecast accurately or effect cost savings
and clinical outcomes, improvements or penalties for
non-performance under our disease management contracts or to
reach agreement with our disease management customers with
respect to the same;
o our inability of our disease management customers to provide
timely and accurate data that is essential to the operation
and measurement of our performance under our disease
management contracts;
o increases in interest rates;
o financial penalties for failure to achieve expected cost
savings or clinical outcomes in our disease management
business;
o changes in the number of covered lives enrolled in the health
plans with which we have agreements for payment;
o the availability of adequate financing and cash flows to fund
our capital and other anticipated expenditures;
o higher than anticipated costs of doing business that cannot be
passed on to customers;
o pricing pressures in our Facet division;
o interruption in the supply or increase in the price of drugs
used in our Women's Health business;
o information technology failures or obsolescence or the
inability to effectively integrate new technologies;
o inventory obsolescence;
o the outcome of legal proceedings or investigations involving
us, and the adequacy of insurance coverage in the event of an
adverse judgment; and
o the risk factors discussed from time to time in our SEC
reports, including but not limited to, our Annual Report on
Form 10-K for the year ended December 31, 2002.
Many of such factors are beyond our ability to control or predict, and
readers are cautioned not to put undue reliance on such forward-looking
statements. We disclaim any obligation to update or review any forward-looking
statements contained in this prospectus, any prospectus supplement or any
document incorporated by reference or in
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any statement referencing the risk factors and other cautionary statements set
forth in this prospectus, or any prospectus supplement whether as a result of
new information, future events or otherwise, except as may be required by our
disclosure obligations in filings we make with the SEC under federal securities
laws.
RISK FACTORS
Investing in our securities involves risks. You should carefully
consider the risks described below and other information contained or
incorporated by reference in this prospectus before making an investment
decision. The risks and uncertainties described below and in our other filings
incorporated by reference are not the only ones facing our company. Additional
risks and uncertainties not currently known to us or that we currently consider
immaterial may also adversely affect us. If any of the following risks occur,
our business, financial condition or results of operations could be materially
harmed. In such case, the value of our securities could decline and you may lose
all or part of your investment.
In addition, the prospectus supplement applicable to each type or
series of securities we offer will contain a discussion of risks applicable to
the particular type of securities that we are offering under that prospectus
supplement. Prior to making a decision about investing in our securities, you
should carefully consider the risk factors in this prospectus in addition to the
specific risk factors discussed under the caption "Risk Factors" in the
applicable prospectus supplement, together with all other information contained
in the prospectus supplement or appearing in, or incorporated by reference in,
this prospectus.
THE DISEASE MANAGEMENT BUSINESS IS A RELATIVELY NEW COMPONENT OF THE OVERALL
HEALTHCARE INDUSTRY.
Disease management services are relatively new components of our
business and of the overall healthcare industry. Accordingly, payors have not
had significant experience in purchasing, evaluating or monitoring such
services, which generally results in a lengthy sales cycle. The success of our
business plan relative to its disease management operations depends on a number
of factors. These factors include:
o our ability to differentiate our products and service
offerings from those of our competitors;
o the extent and timing of the acceptance of our services as a
replacement for, or supplement to, traditional managed care
offerings;
o our ability to implement new and additional services
beneficial to health plans and employers; and
o our ability to effect cost savings for health plans and
employers through the use of our programs.
Since the disease management business is continually evolving, we may
not be able to anticipate and adapt to a developing market. Moreover, we cannot
accurately predict the future growth rate or the ultimate size of the disease
management market.
WE ARE HIGHLY DEPENDENT ON PAYMENTS FROM THIRD-PARTY HEALTHCARE PAYORS, WHICH
MAY IMPLEMENT COST REDUCTION MEASURES THAT ADVERSELY AFFECT OUR BUSINESS AND
OPERATIONS.
For the six month period ended June 30, 2003, our revenues from
continuing operations were derived from the following types of customers:
approximately 46% from third-party private payors (including employers), 23%
from original equipment manufacturers and distributors, 15% from domestic
government payors and 16% from foreign healthcare systems. Third-party private
and governmental payors exercise significant control over patient access and
increasingly use their enhanced bargaining power to secure discounted rates and
other concessions from providers. This trend, as well as other changes in
reimbursement rates, policies or payment practices by third-party and
governmental payors (whether initiated by the payor or legislatively mandated),
could have an adverse impact on our Women's Health and disease management
businesses.
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GOVERNMENT REGULATIONS MAY ADVERSELY AFFECT OUR BUSINESS.
We are subject to extensive and frequently changing Federal, state,
local and foreign regulation. Changes in laws or regulations or new
interpretations of existing laws or regulations can have a dramatic effect on
operating methods, costs and reimbursement amounts provided by government and
third-party payors. There can be no assurance that we are in compliance with all
applicable existing laws and regulations or that we will be able to comply with
new laws or regulations. Changes in applicable laws or any failure to comply
with existing or future laws, regulations or standards could have a material
adverse effect on our results of operations, financial condition, business and
prospects.
Many states require providers of home health services such as our
Women's Health segment, to be licensed as home health agencies and to have
medical waste disposal permits. In addition, the operations of our diabetes and
respiratory disease management business require us to be licensed as a pharmacy
or durable medical equipment provider in several states. Our Matria Laboratories
subsidiary is a licensed clinical laboratory in Kansas. Also, many states
require Quality Oncology, our cancer disease management subsidiary, to be
licensed as a utilization review provider. Moreover, certain of our employees
are subject to state laws and regulations regarding the ethics and professional
practice of pharmacy and nursing. We may also be required to obtain
certification to participate in governmental payment programs, such as Medicare
and Medicaid. Some states have established Certificate of Need ("CON") programs
regulating the expansion of healthcare operations. The failure to obtain, renew
or maintain any of the required licenses, certifications or CONs could adversely
affect our business.
Many of the products utilized by us for the provision of our services
are classified as medical devices under the Federal Food, Drug and Cosmetic Act
(the "FDC Act") and are subject to regulation by the Food and Drug
Administration, (the "FDA"). In addition some of our services involve the use of
drugs that are regulated by the FDA under the FDC Act. Although medical devices
and drugs used by us are labeled for specific indications and cannot be promoted
for any other indications, the FDA allows physicians to prescribe drugs and
medical devices for such "off-label" indications under the "practice of
medicine" doctrine. Negative publicity concerning the off-label use of drugs and
devices may adversely affect our Women's Health segment's business.
The Health Insurance Portability and Accountability Act of 1996
("HIPAA") governs electronic healthcare transactions and the privacy and
security of medical records and other individually identifiable patient data.
Healthcare providers and other affected entities had until April 2003 to comply
with these privacy regulations. We requested and obtained an extension of time
to comply with the electronic transactions regulations until October 2003.
Further regulations establishing healthcare information security requirements
have been issued with compliance required by April 2005. Any failure to comply
with HIPAA could result in criminal penalties and civil sanctions.
Our businesses that sell products and services that are reimbursed by
government payors, such as Medicare and state Medicaid, are subject to
particularly pervasive regulation by those agencies. These regulations impose
stringent requirements for provider participation in those programs and for
reimbursement of products and services. Additionally, many applicable laws and
regulations are aimed at curtailing fraudulent and abusive practices in relation
to those programs. These rules include the illegal remuneration provisions of
the Social Security Act (sometimes referred to as the "Anti-Kickback" statute),
which impose criminal and civil sanctions on persons who knowingly and willfully
solicit, offer, receive or pay any remuneration, whether directly or indirectly,
in return for, or to induce, the referral of a patient covered by a Federal
healthcare program to a particular provider of healthcare products or services.
Related Federal laws make it unlawful, in certain circumstances, for a physician
to refer patients covered by Federal healthcare programs to a healthcare entity
with which the physician and/or the physician's family has a financial
relationship. Additionally, a large number of states have laws similar to the
Federal laws aimed at curtailing fraud and abuse and physician "self-referrals."
In addition to the laws described above, the Federal False Claims Act
imposes civil liability on individuals or entities that submit false or
fraudulent claims for payment to the government. HIPAA created two new Federal
crimes: "Healthcare Fraud" and "False Statements Relating to Healthcare
Matters." The Healthcare Fraud Statute
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prohibits knowingly and willfully executing a scheme or artifice to defraud any
healthcare benefit program. The False Statements Relating to Healthcare Matters
statute prohibits knowingly and willfully falsifying, concealing or covering up
a material fact by any trick, scheme or device or making any materially false,
fictitious or fraudulent statement in connection with the delivery of or payment
for healthcare benefits, items or services.
Violation of these and other applicable rules can result in substantial
fines and penalties, required repayment of monies previously recognized as
income, as well as exclusion from future participation in government-sponsored
healthcare programs.
There can be no assurance that we will not become the subject of a
regulatory or other investigation or proceeding or that its interpretations of
applicable laws and regulations will not be challenged. The defense of any such
challenge could result in substantial cost to us and diversion of management's
time and attention. Thus, any such challenge could have a material adverse
effect on our business, regardless of whether it ultimately is sustained.
The Federal False Claims Act allows actions to be brought on the
government's behalf by individuals under the Federal False Claims Act's
"qui-tam" provision. A qui-tam claim has been filed against us by an unknown
party alleging possible improper claims for Medicare payments in the pharmacy,
laboratory and supplies division of our Health Enhancement segment. As is
required by law, the Federal government is conducting an investigation into the
complaint to determine if it will intervene in this suit. We intend to cooperate
fully with the investigation. The matter is still in its preliminary stages, and
we are unable to predict the ultimate disposition of the action or the
investigation. An unfavorable outcome in the action could subject us to
repayment obligations or loss of reimbursement, substantial fines or penalties
and other sanctions, which could have a material adverse effect on our financial
position and results of operations.
FACET'S REVENUES ARE SUBSTANTIALLY DEPENDENT ON A FEW CUSTOMERS.
Sales of our Facet Technologies subsidiary are substantially dependent
on sales to four customers. For the six month period ended June 30, 2003, these
four customers represented approximately 86% of Facet's revenues, which in turn
represented approximately 21% of our total revenues. We have multiple contracts
covering various products with these customers that have expirations ranging
from six months to two years. There is no guarantee that these contracts will be
renewed on favorable terms, if at all, or that these customers will continue to
purchase services at prior levels. If we do not generate as much revenue from
our major customers as we expect or if we lose certain of them as customers, our
total revenue will be significantly reduced.
THE PROFITABILITY OF OUR PHARMACY, LABORATORY AND SUPPLIES DIVISION DEPENDS ON
RECURRING CUSTOMER ORDERS.
Due to the marketing and regulatory compliance costs associated with
initial customer qualification, the pharmacy, laboratory and supplies division
of our Health Enhancement segment generally incurs losses with respect to the
first order of drugs and supplies from a new customer. Accordingly, the
profitability of this component depends in large part on recurring and sustained
reorders. Reorder rates are inherently uncertain due to several factors, many of
which are outside our control, including changing customer preferences,
competitive price pressures, customer transition to extended care facilities,
customer mortality and general economic conditions. Our inability to obtain
recurring and sustained reorders could have a material adverse effect on our
pharmacy, laboratory and supplies division.
FACET AND OUR WOMEN'S HEALTH SEGMENT ARE BOTH HIGHLY DEPENDENT ON SUPPLIES FROM
LIMITED SOURCES.
Facet's business is highly dependent on its exclusive supply
relationship with Nipro Corporation, from which it purchases virtually all of
the components for its products on terms we view as favorable. Under the
agreement, some terms, such as pricing, are negotiated annually while others,
such as the exclusivity arrangement, are renewable after longer periods. The
exclusivity provisions of our agreement with Nipro will expire in November 2003.
Although Nipro has been a supplier to Facet's business for more than 15 years,
there can be no assurance that we will be able to negotiate a renewal of the
exclusivity arrangement on favorable terms, if at all. In addition, there are an
extremely limited number of suppliers of terbutaline sulfate, a prescription
drug used in large supply by our Women's Health segment, and price increases in
this drug during the second and third quarter of 2002 adversely affected the
segment's cost of revenues. In September 2002, we entered into an arrangement
for the supply of this
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drug which has reduced its cost to us. Termination of any of these supply
arrangements or failure to continue any of them on favorable terms could have a
material adverse effect on the business of Facet or the Women's Health segment,
as applicable, as would any interruption in the supply or significant increase
in the price of these products, whatever the cause.
OUR DATA MANAGEMENT AND INFORMATION TECHNOLOGY SYSTEMS ARE CRITICAL TO
MAINTAINING AND GROWING OUR BUSINESS.
Our disease management services are dependent on the effective use of
information technology. We use our proprietary TRAX(TM) system and Quality
Oncology's Integrated Care Management System in the provision of our disease
management services. In the fourth quarter of 2002, we installed a
state-of-the-art computer system to support the growth of the pharmacy,
laboratory and supplies division of the Health Enhancement segment. Although we
believe that our systems provide us with a competitive advantage, we are exposed
to technology failure or obsolescence. In addition, data acquisition, data
quality control and data analysis, which are a cornerstone of our disease
management programs, are intense and complex processes subject to error.
Untimely, incomplete or inaccurate data or flawed analysis of such data could
have a material adverse effect on our business and results of operations.
THE DEVELOPMENT OF IMPROVED TECHNOLOGIES FOR GLUCOSE MONITORING THAT ELIMINATE
THE NEED FOR CONSUMABLE TESTING SUPPLIES COULD ADVERSELY AFFECT OUR BUSINESS.
Most of the revenues from our pharmacy, laboratory and supplies
business and substantially all of Facet's revenues are from the sale of
consumable testing supplies used to draw and test small quantities of blood for
the purpose of measuring and monitoring blood glucose levels. Numerous research
and development efforts are underway to develop more convenient and less
intrusive glucose measurement techniques. The commercialization and widespread
acceptance of new technologies that eliminate or reduce the need for consumable
testing supplies could negatively affect our pharmacy, laboratory and supplies
business.
IMPAIRMENT OF OUR INTELLECTUAL PROPERTY RIGHTS COULD NEGATIVELY AFFECT OUR
BUSINESS OR ALLOW COMPETITORS TO MINIMIZE ANY ADVANTAGE THAT OUR PROPRIETARY
TECHNOLOGY MAY GIVE US.
We own a number of trademarks and service marks which, in the
aggregate, are important to the marketing and promotion of our products and
services. Patents owned by Facet or its suppliers are material to the continued
marketing of those products. Also, we consider our disease management programs
to be proprietary and material to the portion of our business to which they
relate. In addition, our future success depends in part upon our proprietary
technology and product development, and our ability to obtain patent and other
intellectual property rights with respect to such technology and development.
We hold patents or have an exclusive, perpetual right to use the only
uterine activity monitors that have received pre-market approval from the Food
and Drug Administration for home use on patients with a history of previous
preterm birth. Our rights to the monitors had been a material competitive
advantage in marketing our uterine activity monitoring services. In 2001, the
FDA reclassified the monitors from Class III into Class II devices, which will
make substantially equivalent devices available to our competitors, without
their having to receive pre-market approval. As part of the reclassification,
the FDA has imposed special controls on the use of such devices. This
development could have a material adverse affect on our home uterine activity
monitoring business.
Patent positions are uncertain and involve complex legal, scientific
and factual questions. Our patent positions might not protect us against
competitors with similar products or technologies because competing products or
technologies may not infringe our patents. For certain of our products in
development, there may be third parties who have patents or pending patents that
they may claim prevent us from commercializing these products in certain
territories. If our patent or other intellectual property rights or positions
are infringed, challenged, invalidated, prevented or otherwise impaired, or we
fail to prevail in any future intellectual property litigation, our business
could be adversely affected.
7
MANY OF OUR DISEASE MANAGEMENT FEES ARE CONTINGENT UPON PERFORMANCE.
Many of our or our suppliers existing disease management agreements
contain a savings guarantee, which typically provides that we will repay all or
some of our fees if the payor's cost savings as a result of our disease
management programs do not meet expectations or if other quality performance
measures are not met. Some contracts also provide that we will receive bonus
compensation by meeting certain performance criteria. There is no guarantee that
we will accurately forecast cost savings and clinical outcome improvements under
our disease management agreements or meet the performance criteria necessary to
receive the designated bonus compensation or to avoid repayment of fees under
the agreements.
OUR FOREIGN OPERATIONS ARE SUBJECT TO ADDITIONAL RISKS.
Although the majority of our operations are in the United States, the
Health Enhancement segment derives substantial revenue from outside of the
United States. The risks of doing business in foreign countries include
potential adverse changes in the stability of foreign governments and their
diplomatic relations, hostility from local populations, adverse effects of
currency fluctuations and exchange controls, deterioration of foreign economic
conditions and changes in tax laws. Due to the foregoing risks, any of which, if
realized, could have a material adverse effect on us, we believe that our
business activities outside of the United States involve a higher degree of risk
than our domestic activities.
Our diabetes supply business in Germany distributes its products to
customers primarily from physician offices, and substantially all of its
revenues are received from the German national healthcare system. Doctors
participating in this method of distribution, both for our company and other
providers, have been subject to lawsuits brought by pharmacies alleging that
this practice constitutes a violation by such doctors of German law. There is a
split of authority among German courts on this issue. Although we have not been
a party to any of these lawsuits or claims, such lawsuits could indirectly
affect our operations, and an unfavorable resolution of this issue could require
us to seek alternative channels of distribution and could have a material
adverse effect on our German operations.
WE ARE EXPOSED TO INTEREST RATE RISK AS A RESULT OF OUR INTEREST RATE SWAP
ARRANGEMENT.
In March 2003, we entered into an interest rate swap agreement with a
bank involving a notional amount of $50 million of our senior notes, which carry
an 11% fixed rate of interest. This transaction, which terminates in May 2008 if
early termination rights beginning in May 2005 are not exercised, is considered
to be a hedge against changes in the fair value of our fixed-rate debt
obligation. Under the arrangement, the bank will pay us an 11% fixed rate of
interest semi-annually in respect of the notional amount, and we will pay the
bank semi-annually a variable rate of interest in respect of the notional amount
based on the six-month LIBOR rate plus 7.535%. As a result of this swap
arrangement, we are exposed to interest rate risk. A significant increase in the
LIBOR rate could have a material adverse effect on our financial position and
results of operations.
WE MAY FACE COSTLY LITIGATION THAT COULD FORCE US TO PAY DAMAGES AND HARM OUR
REPUTATION.
Like other participants in the healthcare market, we are subject to
lawsuits alleging negligence, product liability or other similar legal theories,
many of which involve large claims and significant defense costs. Any of these
claims, whether with or without merit, could result in costly litigation, and
divert the time, attention, and resources of our management. Although we
currently maintain liability insurance intended to cover such claims, there can
be no assurance that the coverage limits of such insurance policies will be
adequate or that all such claims will be covered by the insurance. In addition,
these insurance policies must be renewed annually. Although we have been able to
obtain liability insurance, such insurance may not be available in the future on
acceptable terms, if at all. A successful claim in excess of the insurance
coverage could have a material adverse effect on our results of operations or
financial condition.
We are currently the subject of a class action lawsuit alleging that we
violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and
Rule 10b-5 promulgated thereunder. Claims against us, including this class
action lawsuit and the qui-tam claim described above under "Government
regulations may adversely affect our business," regardless of their merit or
eventual outcome, could have a material adverse effect on our business and
reputation.
8
FUTURE ACQUISITIONS MAY CAUSE INTEGRATION PROBLEMS, DISRUPT OUR BUSINESS AND
STRAIN OUR RESOURCES.
In the past we have made several significant business acquisitions, and
may continue with such acquisitions in the future. Our success will depend, to a
certain extent, on the future performance of these acquired businesses and our
ability to smoothly integrate any acquired business entities. These
acquisitions, either individually or as a whole, could divert management
attention from other business concerns and expose us to unforeseen liabilities
or risks associated with entering new markets and integrating those new
entities. Further, the integration of these entities may cause us to lose key
employees. Integrating newly acquired organizations and technologies could be
expensive and time consuming and may strain our resources. Consequently, we may
not be successful in integrating these acquired businesses or technologies and
may not achieve anticipated revenue and cost benefits.
IF WE DO NOT MANAGE OUR GROWTH SUCCESSFULLY, OUR GROWTH AND PROFITABILITY MAY
SLOW OR STOP.
If we do not manage our growth successfully, our growth and
profitability may slow or stop. We have expanded our operations rapidly and plan
to continue to expand. This expansion has created significant demands on our
administrative, operational and financial personnel and other resources.
Additional expansion in existing or new markets could strain our resources and
increase our need for capital. Our personnel, systems, procedures, controls and
existing space may not be adequate to support further expansion.
OUR INVENTORY MANAGEMENT IS COMPLEX, AND EXCESS INVENTORY MAY HARM OUR RESULTS
OF OPERATIONS.
Our management makes estimates regarding our inventory based on
assumptions about future demand. Furthermore, a substantial portion of our
products supplied by Facet are tailored to the specifications of particular
customers. If our assumptions about future demand change or actual market
conditions are less favorable than those projected by management, we may become
subject to inventory obsolescence and may have to sell excess inventory at
reduced prices, or, in the case of products tailored to specific customers,
excess inventory may not be marketable at all. Any excess inventory held by us
may therefore adversely affect our results of operations.
OUR PROFIT MARGIN MAY BE ADVERSELY AFFECTED BY THE PRODUCT-MIX OF OUR WOMEN'S
HEALTH SEGMENT.
Although our Women's Health segment is a leading provider in its
market, its costs of revenues as a percentage of revenues has increased over the
past several years. This increase, which has reduced our profit margins, is
largely a function of a trend in physician prescription patterns towards the use
of higher cost, lower margin products. If the current trend toward an increase
in volume of lower margin products relative to higher margin products continues
in the Women's Health segment, our Women's Health segment's profit margins will
continue to decline.
FACET OPERATES IN AN INDUSTRY THAT IS BECOMING INCREASINGLY DOMINATED BY PRICE
COMPETITION.
In all of our product and service lines, we face strong competition
from companies, both large and small, located in the United States and abroad,
on factors including quality of care and service, reputation within the medical
community, scope of products and services, and geographical scope and price.
Facet operates in an industry where price competition is becoming increasingly
dominant over other factors, which has created downward pressure on pricing on
this portion of our business. If this trend toward price dominated competition
continues, the resulting downward pricing pressure may have a material adverse
effect on Facet's business.
IF OUR COSTS OF PROVIDING PRODUCTS OR SERVICES INCREASE, WE MAY NOT BE ABLE TO
PASS THESE COST INCREASES ON TO OUR CUSTOMERS.
In many of our markets, due to competitive pressures or the fact that
reimbursement rates are set by law, we have very little control over the price
at which we sell our products and services. If our costs increase, we may not be
able to increase our prices, which would adversely affect results of operations.
Accordingly, any increase in the cost of such products and services could
significantly reduce our overall profit margin.
9
OUR OPERATING RESULTS HAVE FLUCTUATED IN THE PAST AND COULD FLUCTUATE IN THE
FUTURE.
Our operating results have varied in the past and may fluctuate
significantly in the future due to a variety of factors, many of which are
outside of our control. These factors include:
o impact of substantial divestitures and acquisitions;
o loss or addition of customers and referral sources;
o investments required to support growth and expansion;
o changes in the mix of our products and customers;
o changes in healthcare reimbursement policies and amounts;
o increases in operating expenses;
o increases in selling, general and administrative expenses;
o increased or more effective competition; and
o regulatory changes.
In addition, revenues from our Women's Health segment are historically
less during the fourth and first calendar quarters than during the second and
third calendar quarters. The seasonal variability of demand for these services
significantly affects, and we believe will continue to affect, our quarterly
operating results.
OUR STOCK PRICE AND TRADING VOLUME MAY BE VOLATILE.
Stock prices of healthcare companies and our stock price in particular
may be volatile. The price of our stock may be influenced by a number of
factors, including variations in our financial results, changes in earnings
estimates by financial analysts and general economic, industry and market
conditions. Many of these factors are beyond our control. In recent years, the
price of our common stock has fluctuated significantly. Securities class-action
litigation, like the lawsuit recently filed against us, has often been brought
against companies following periods of volatility in the market price of their
securities. This type of litigation is expensive and could divert management's
attention. In addition, our stock is not heavily traded, and therefore the
ability of shareholders to achieve relatively quick liquidity without a negative
impact on the stock price may be limited.
OUR LONG-TERM DEBT AGREEMENTS AND OTHER FACTORS MAY LIMIT OUR ABILITY TO PAY THE
EARN OUT PAYMENT REQUIRED IN CONNECTION WITH OUR ACQUISITION OF QUALITY
ONCOLOGY.
In connection with our acquisition of Quality Oncology, we are
obligated to pay LifeMetrix, Inc. an earn out payment based upon the financial
performance of Quality Oncology during 2003. We have the option of making this
payment in cash or common stock, but, unless LifeMetrix agrees otherwise, we are
required to pay at least the lesser of 20% of the earn out payment or $10
million in cash. As of June 30, 2003, we estimate that the total earn out
payment will be between $15 million and $20 million, although the actual amount
could be significantly more or less. LifeMetrix's right to receive cash as a
part of the earn out payment is subordinate to the terms of the indenture
governing our 11% senior notes due 2008. Although we currently would be able to
make the required cash payments under the indenture, it is possible that
circumstances could exist in 2004 that would prevent us, under provisions in the
indenture limiting payments, from paying some or all of the cash portion of an
earn out payment, in which case LifeMetrix would have the option of receiving
shares of our common stock to make up for a deficiency in cash payments.
Furthermore, there can be no assurance as to the availability of adequate
financing and cash flows to fund payment of all or a substantial portion of the
earn out in cash, and we may be forced to seek additional funding, which may not
be available on commercially reasonable terms, if at all. If we are unable to
pay all or a substantial portion of any earn out payment
10
in cash, the issuance of our common stock in lieu of cash could result in
significant dilution of the voting and economic rights of our common
stockholders.
OUR COMPANY
We are a comprehensive, integrated disease management company offering
products and services to patients, physicians, health plans and employers.
Disease management encompasses a broad range of services aimed at controlling
healthcare costs through proactive management of care for individuals with
high-cost or chronic diseases and conditions. Our strategy is to focus on
providing effective cost-saving solutions for five of the most costly chronic
diseases and medical conditions in the nation: diabetes, obstetrical conditions,
respiratory disorders, cancer and cardiovascular diseases. In addition, we have
added programs for depression and chronic pain to our service offerings. Our
disease management programs seek to lower healthcare costs and improve patient
outcomes through a broad range of disease management, mail-order supply and
clinical services. We contract with managed care organizations and self-insured
employers for the provision of our services for which we are generally
compensated on a fee-for-service basis. We are also the leading designer,
developer, assembler and distributor of products for the diabetes market.
Our principal executive offices are located at 1850 Parkway Place,
Marietta, Georgia 30067, and our phone number is (770) 767-4500. Our corporate
website address is http://www.matria.com. Information contained on our website
is not part of this document.
USE OF PROCEEDS
Unless we indicate otherwise in an accompanying prospectus supplement,
we intend to use the net proceeds from the sale of the securities offered by
this prospectus for general corporate purposes, which may include, but not be
limited to, funding operations and capital expenditures, repaying or refinancing
of existing indebtedness, and financing acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to
fixed charges for the periods indicated:
Year Ended December 31, Six Months Ended
----------------------- June 30,
------------------
2002 2001 2000 1999 1998 2003 2002
---- ---- ---- ---- ---- ---- ----
Ratio of earnings to fixed (0.2) (b) 1.7 2.1 2.8 (29.9) (b) 2.0 1.3
charges (a)
(a) Our ratio of earnings to fixed charges has been computed by
dividing earnings before income taxes plus fixed charges by fixed charges. Fixed
charges consist of interest expense on debt (including amortization of debt
expense) and one-third of rent expense (the portion deemed representative of the
interest portion). For 2001, 2000 and 1999, fixed charges also included
preferred stock dividend requirements.
(b) The dollar amount of the deficiency, based on a one-to-one coverage
ratio, was $20.1 million and $100.4 million for the years ended December 31,
2002 and 1998, respectively.
DIVIDEND POLICY
We have not paid any dividends with respect to our common stock and do
not intend to declare any dividends in the near future. We are a party to a Loan
and Security Agreement and an Indenture, each of which contains covenants
restricting the payment of dividends.
11
GENERAL DESCRIPTION OF SECURITIES THAT WE MAY SELL
We, directly or through agents, dealers or underwriters that we may
designate, may offer and sell, from time to time, up to $150,000,000 aggregate
initial offering price of:
o shares of our common stock;
o shares of our preferred stock, which may be issued in the form
of depositary receipts representing a fraction of a share of
preferred stock;
o our debt securities, in one or more series, which may be
senior debt securities or subordinated debt securities, in
each case consisting of notes or other evidences of
indebtedness, and which may be guaranteed by certain of our
subsidiaries;
o warrants to purchase any of the other securities that may be
sold under this prospectus; and
o any combination of these securities, individually or as units.
We may offer and sell these securities either individually or as units
consisting of one or more of these securities, each on terms to be determined at
the time of sale. We may issue debt securities and/or preferred stock that are
exchangeable for and/or convertible into common stock or any of the other
securities that may be sold under this prospectus. When particular securities
are offered, a supplement to this prospectus will be delivered with this
prospectus, which will describe the terms of the offering and sale of the
offered securities.
DESCRIPTION OF COMMON STOCK
Our authorized capital stock consists of 25,000,000 shares of common
stock, par value $.01 per share, and 50,000,000 shares of preferred stock, par
value $.01 per share. We describe the preferred stock under the heading
"Description of Preferred Stock."
This section summarizes the general terms of our common stock that we
may offer. The prospectus supplement relating to the common stock offered will
state the number of shares offered, the initial offering price and the market
price, dividend information and any other relevant information. The summaries in
this section and the prospectus supplement do not describe every aspect of the
common stock. When evaluating the common stock, you should also refer to all of
the provisions of our Restated Certificate of Incorporation, our Amended Bylaws
and the Delaware General Corporation Law ("DGCL"). Our Restated Certificate of
Incorporation and Amended Bylaws are incorporated by reference in the
registration statement.
TERMS OF THE COMMON STOCK
At June 30, 2003, approximately 10,140,000 shares of our common stock
were outstanding. We may, at our option, elect to offer common stock. The
following description of our common stock is only a summary and is subject to
the terms of provisions of our Restated Certificate of Incorporation and our
Amended Bylaws. We encourage you to read our Restated Certificate of
Incorporation and our Amended Bylaws, which have been filed with the SEC and are
incorporated by reference into this prospectus.
Our common stock has no preemptive rights and no redemption, sinking
fund or conversion provisions. All shares of our common stock have one vote on
any matter submitted to the vote of stockholders. Our common stock does not have
cumulative voting rights. Upon our liquidation, the holders of our common stock
are entitled to receive, on a pro rata basis, all assets then legally available
for distribution after payment of debts and liabilities and preferences on
preferred stock, if any. Holders of our common stock are entitled to receive
dividends when and as declared by the board of directors out of funds legally
available therefor (subject to the prior rights of preferred stock, if any). All
outstanding shares of our common stock are fully paid and nonassessable.
12
RIGHTS AGREEMENT
In connection with the 1996 merger of Tokos Medical Corporation and
Healthdyne Maternity Management, we designated certain rights to our
stockholders in connection with the adoption of a stockholder's rights
agreement. The rights agreement contains provisions that are designed to protect
stockholders in the event of unsolicited attempts to acquire Matria. Under the
terms of the rights agreement, a common stock purchase right is attached to each
outstanding share of our common stock.
If a person or group ("acquirer") acquires beneficial ownership of 15%
or more of our outstanding common stock or announces a tender offer or exchange
offer that would result in the acquisition of a beneficial ownership of 20% or
more of our outstanding common stock, the rights detach from the common stock
and are distributed to stockholders as separate securities.
Each right entitles its holders to purchase one one-hundredth of a
share (a unit) of common stock, at a purchase price of $244 per unit. If we are
acquired in a merger or other business combination acquisition, or 50% of our
assets or earnings power are sold at any time after the rights become
exerciseable, the rights entitle a holder to buy a number of common shares of
the acquiring company having a market value of twice the exercise price of the
right.
If a person acquires 20% of our common stock or if a 15% or larger
holder merges with Matria and the common stock is not changed or exchanged in
such merger, or engages in self-dealing acquisitions with Matria, each right not
owned by such holder becomes exerciseable for the number of our common shares
having a market value of twice the exercise price of the right. The rights,
which do not have voting power, expire on March 9, 2006 unless previously
distributed and may be redeemed by us in whole at a price of $0.01 per right any
time before and within ten (10) days after their distribution.
The rights have certain "anti-takeover" effects. The rights will cause
substantial dilution to a person or group that attempts to acquire us on terms
not approved by our board of directors. Generally, the rights should not
interfere with any merger or other business combination approved by our board of
directors prior to the time that there is an acquirer since until such time the
rights generally may be redeemed by our board of directors at $0.01 per right.
TRANSFER AGENT
The transfer agent for our common stock is SunTrust Bank, Atlanta.
LISTING
Our common stock is listed for trading on the Nasdaq National Market
under the symbol "MATR."
DESCRIPTION OF PREFERRED STOCK
This section summarizes the general terms of the preferred stock that
we may offer. The prospectus supplement relating to a particular series of
preferred stock will describe the specific terms of that series, which may be in
addition to or different from the general terms summarized in this section. The
summaries in this section and the prospectus supplement do not describe every
aspect of the preferred stock. If any particular terms of a series of preferred
stock described in a prospectus supplement differ from any of the terms
described in this prospectus, then the terms described in the applicable
prospectus supplement will be deemed to supersede the terms described in this
prospectus. When evaluating the preferred stock, you also should refer to all of
the provisions of our Restated Certificate of Incorporation, the applicable
certificate of designation for the offered series of preferred stock and the
DGCL. The applicable certificate of designation will be filed as an exhibit to
or incorporated by reference in the registration statement.
13
GENERAL
Our board of directors is authorized to issue shares of preferred
stock, in one or more series or classes, and to fix for each series voting
powers and those preferences and relative, participating, optional or other
special rights and those qualifications, limitations or restrictions as are
permitted by the DGCL.
Our board of directors is authorized to determine the terms for each
series of preferred stock, and the prospectus supplement will describe the terms
of any series of preferred stock being offered, including:
o the designation of the shares and the number of shares that
constitute the series;
o the dividend rate (or the method of calculation thereof), if
any, on the shares of the series and the priority as to
payment of dividends with respect to other classes or series
of our capital stock;
o the dividend periods (or the method of calculation thereof);
o the voting rights of the shares;
o the liquidation preference and the priority as to payment of
the liquidation preference with respect to other classes or
series of our capital stock and any other rights of the shares
of the series upon our liquidation or winding up;
o whether or not and on what terms the shares of the series will
be subject to redemption or repurchase at our option;
o whether and on what terms the shares of the series will be
convertible into or exchangeable for other securities;
o whether depositary shares representing shares of the series of
preferred stock will be offered and, if so, the fraction of a
share of the series of preferred stock represented by each
depositary share (see "Description of Depositary Shares"
below);
o whether the shares of the series of preferred stock will be
listed on a securities exchange;
o any special United States federal income tax considerations
applicable to the series; and
o the other rights and privileges and any qualifications,
limitations or restrictions of the rights or privileges of the
series.
DIVIDENDS
Holders of shares of preferred stock will be entitled to receive, when
and as declared by our board of directors, dividends payable at the dates and at
the rates, if any, per share per annum as set forth in the applicable prospectus
supplement.
Unless otherwise set forth in the applicable prospectus supplement,
each series of preferred stock will rank junior as to dividends to any preferred
stock that may be issued in the future that is expressly senior as to dividends
to that preferred stock. If we should fail at any time to pay accrued dividends
on any senior shares at the time the dividends are payable, we may not pay any
dividend on the junior preferred stock or redeem or otherwise repurchase shares
of junior preferred stock until the accumulated but unpaid dividends on the
senior shares have been paid or set aside for payment in full by us.
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Unless otherwise set forth in the applicable prospectus supplement, no
dividends (other than in common stock or other capital stock ranking junior to
the preferred stock of any series as to dividends and upon liquidation) may be
declared or paid or set aside for payment, nor may any other distribution be
declared or made upon the common stock, or any of our other capital stock
ranking junior to or on a parity with the preferred stock of that series as to
dividends, nor may any common stock or any of our other capital stock ranking
junior to or on a parity with the preferred stock of that series as to dividends
be redeemed, purchased or otherwise acquired for any consideration (or any
monies be paid to or made available for a sinking fund for the redemption of any
shares of any of that stock) by us (except by conversion into or exchange for
other capital stock of ours ranking junior to the preferred stock of that series
as to dividends) unless (i) if that series of preferred stock has a cumulative
dividend, full cumulative dividends on the preferred stock of that series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for all past dividend periods and the then
current dividend period and (ii) if such series of preferred stock does not have
a cumulative dividend, full dividends on the preferred stock of such series have
been or contemporaneously are declared and paid or declared and a sum sufficient
for the payment thereof set apart for payment for the then current dividend
period. However, any monies deposited in any sinking fund with respect to any
preferred stock in compliance with the provisions of the sinking fund may be
applied to the purchase or redemption of that preferred stock in accordance with
the terms of the sinking fund, regardless of whether at the time of the
application full dividends, including cumulative dividends, upon shares of the
preferred stock outstanding on the last dividend payment date have been paid or
declared and set apart for payment. In addition, any junior or parity preferred
stock or common stock may be converted into or exchanged for our stock ranking
junior to the preferred stock as to dividends.
The amount of dividends payable for the initial dividend period or any
period shorter than a full dividend period will be computed on the basis of a
360-day year of twelve 30-day months, unless otherwise set forth in the
applicable prospectus supplement. Accrued but unpaid dividends will not bear
interest, unless otherwise set forth in the applicable prospectus supplement.
CONVERTIBILITY
No series of preferred stock will be convertible into, or exchangeable
for, other securities or property except as set forth in the applicable
prospectus supplement.
REDEMPTION AND SINKING FUND
No series of preferred stock will be redeemable or receive the benefit
of a sinking fund except as set forth in the applicable prospectus supplement.
LIQUIDATION RIGHTS
Unless otherwise set forth in the applicable prospectus supplement, in
the event of our liquidation, dissolution or winding up, the holders of shares
of each series of preferred stock are entitled to receive out of our assets
available for distribution to stockholders, before any distribution of assets is
made to holders of (i) any other shares of preferred stock ranking junior to
that series of preferred stock as to rights upon liquidation, dissolution or
winding up and (ii) shares of common stock, liquidating distributions per share
in the amount of the liquidation preference specified in the applicable
prospectus supplement for that series of preferred stock plus any dividends
accrued and accumulated but unpaid to the date of final distribution; but the
holders of each series of preferred stock will not be entitled to receive the
liquidating distribution of, plus such dividends on, those shares until the
liquidation preference of any shares of our capital stock ranking senior to that
series of the preferred stock as to the rights upon liquidation, dissolution or
winding up will have been paid (or a sum set aside therefor sufficient to
provide for payment) in full. If upon our liquidation, dissolution or winding
up, the amounts payable with respect to the preferred stock, and any other
preferred stock ranking as to any distribution on a parity with the preferred
stock are not paid in full, then the holders of the preferred stock and the
other parity preferred stock will share ratably in any distribution of assets in
proportion to the full respective preferential amount to which they are
entitled. Unless otherwise specified in a prospectus supplement for a series of
preferred stock, after payment of the full amount of the liquidating
distribution to which they are entitled, the holders of shares of preferred
stock will not be entitled to any
15
further participation in any distribution of our assets. Neither a consolidation
or merger of us with another corporation nor a sale of securities will be
considered a liquidation, dissolution or winding up of us.
VOTING RIGHTS
The holders of each series or class of preferred stock we may issue
will have no voting rights, except as required by law and as described below or
in the applicable prospectus supplement. Our board of directors may, upon
issuance of a series or class of preferred stock, grant voting rights to the
holders of that series or class to elect additional board members if we fail to
pay dividends in a timely fashion.
Without the affirmative vote of a majority of the shares of any class
of preferred stock then outstanding, we may not:
o increase or decrease the aggregate number of authorized shares
of that class;
o increase or decrease the par value of the shares of that
class; or
o alter or change the powers, preferences or special rights of
the shares of that class so as to affect them adversely.
If the amendment would adversely alter or change the powers,
preferences or special rights of one or more series of a class of preferred
stock, but not the entire class, then only the shares of the affected series
will have the right to vote on the amendment.
MISCELLANEOUS
The holders of our preferred stock will have no preemptive rights. All
shares of preferred stock being offered by the applicable prospectus supplement
will be fully paid and not liable to further calls or assessment by us. If we
should redeem or otherwise reacquire shares of our preferred stock, then these
shares will resume the status of authorized and unissued shares of preferred
stock undesignated as to series, and will be available for subsequent issuance.
NO OTHER RIGHTS
The shares of a series of preferred stock will not have any
preferences, voting powers or relative, participating, optional or other special
rights except as set forth above or in the applicable prospectus supplement, our
Restated Certificate of Incorporation or the applicable certificate of
designation or as otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of preferred stock
will be designated in the applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
We may, at our option, elect to offer fractional shares rather than
full shares of the preferred stock of a series. In the event that we exercise
this option, we will issue receipts for depositary shares, each of which will
represent a fraction (to be set forth in the prospectus supplement relating to a
particular series of preferred stock) of a share of a particular series of
preferred stock as described below.
The shares of any series of preferred stock represented by depositary
shares will be deposited under one or more deposit agreements among us, a
depositary to be named in the applicable prospectus supplement, and the holders
from time to time of depositary receipts issued thereunder. Subject to the terms
of the applicable deposit agreement, each holder of a depositary share will be
entitled, in proportion to the applicable fraction of a share of
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preferred stock represented by the depositary share, to all the rights and
preferences of the preferred stock represented thereby (including, as
applicable, dividend, voting, redemption, subscription and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of the related series of
preferred stock.
This section summarizes the general terms of the depositary shares that
we may offer. The prospectus supplement relating to the depositary shares will
describe the specific terms of the depositary shares which may be in addition to
or different from the general terms summarized in this section. If any
particular terms of the depositary shares or the deposit agreement described in
a prospectus supplement differ from any of the terms described below, then the
terms described below will be deemed to have been superseded by that prospectus
supplement. When evaluating the depositary shares and preferred stock, you also
should refer to the applicable deposit agreement and depositary receipt. The
applicable deposit agreement and depositary receipt will be filed as exhibits to
the registration statement or incorporated by reference in the registration
statement.
Immediately following our issuance of shares of a series of preferred
stock that will be offered as fractional shares, we will deposit the shares with
the depositary, which will then issue and deliver the depositary receipts to the
purchasers thereof. Depositary receipts will only be issued evidencing whole
depositary shares. A depositary receipt may evidence any number of whole
depositary shares.
Pending the preparation of definitive depositary receipts, the
depositary may, upon our written order, issue temporary depositary receipts
substantially identical to (and entitling the holders thereof to all the rights
pertaining to) the definitive depositary receipts but not in definitive form.
Definitive depositary receipts will be prepared thereafter without unreasonable
delay, and such temporary depositary receipts will be exchangeable for
definitive depositary receipts at our expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all dividends or other distributions
received in respect of the related series of preferred stock to the record
holders of depositary shares relating to the series of preferred stock in
proportion to the number of the depositary shares owned by the holders.
In the event of a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares
entitled thereto in proportion to the number of depositary shares owned by the
holders, unless the depositary determines that the distribution cannot be made
proportionately among the holders or that it is not feasible to make the
distributions, in which case the depositary may, with our approval, adopt any
method it deems equitable and practicable for the purpose of effecting the
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at the place or places and upon
those terms as it may deem proper.
REDEMPTION OF DEPOSITARY SHARES
If any series of the preferred stock underlying the depositary shares
is subject to redemption, the depositary shares will be redeemed from the
proceeds received by the depositary resulting from any redemption, in whole or
in part, of the series of the preferred stock held by the depositary. The
redemption price per depositary share will be equal to the applicable fraction
of the redemption price per share payable with respect to the series of the
preferred stock. If we redeem shares of a series of preferred stock held by the
depositary, the depositary will redeem as of the same redemption date the number
of depositary shares representing the shares of preferred stock so redeemed. If
less than all of the depositary shares are to be redeemed, the depositary shares
to be redeemed will be selected by lot or substantially equivalent method
determined by the depositary.
After the date fixed for redemption, the depositary shares so called
for redemption will no longer be deemed to be outstanding and all rights of the
holders of the depositary shares will cease, except the right to receive the
monies payable upon redemption and any money or other property to which the
holders of the depositary shares were
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entitled upon such redemption, upon surrender to the depositary of the
depositary receipts evidencing the depositary shares. Any funds deposited by us
with the depositary for any depositary shares that the holders thereof fail to
redeem will be returned to us after a period of two years from the date the
funds are so deposited.
VOTING THE UNDERLYING PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any
series of the preferred stock are entitled to vote, the depositary will mail the
information contained in the notice of meeting to the record holders of the
depositary shares relating to the series of preferred stock. Each record holder
of the depositary shares on the record date (which will be the same date as the
record date for the related series of preferred stock) will be entitled to
instruct the depositary as to the exercise of the voting rights pertaining to
the number of shares of the series of preferred stock represented by that
holder's depositary shares. The depositary will endeavor, insofar as
practicable, to vote or cause to be voted the number of shares of preferred
stock represented by the depositary shares in accordance with the instructions,
provided the depositary receives the instructions sufficiently in advance of the
meeting to enable it to so vote or cause to be voted the shares of preferred
stock, and we will agree to take all reasonable action that may be deemed
necessary by the depositary in order to enable the depositary to do so. The
depositary will abstain from voting shares of the preferred stock to the extent
it does not receive specific instructions from the holders of depositary shares
representing the preferred stock.
WITHDRAWAL OF STOCK
Upon surrender of the depositary receipts at the corporate trust office
of the depositary and upon payment of the taxes, charges and fees provided for
in the deposit agreement and subject to the terms thereof, the holder of the
depositary shares evidenced thereby is entitled to delivery at such office, to
or upon his or her order, of the number of whole shares of the related series of
preferred stock and any money or other property, if any, represented by the
depositary shares. Holders of depositary shares will be entitled to receive
whole shares of the related series of preferred stock, but holders of the whole
shares of preferred stock will not thereafter be entitled to deposit the shares
of preferred stock with the depositary or to receive depositary shares therefor.
If the depositary receipts delivered by the holder evidence a number of
depositary shares in excess of the number of depositary shares representing the
number of whole shares of the related series of preferred stock to be withdrawn,
the depositary will deliver to the holder upon his or her order at the same time
a new depositary receipt evidencing the excess number of depositary shares.
AMENDMENT AND TERMINATION OF A DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares of any
series and any provision of the applicable deposit agreement may at any time and
from time to time be amended by agreement between us and the depositary.
However, any amendment that materially adversely alters the rights of the
holders of depositary shares of any series will not be effective unless the
amendment has been approved by the holders of at least a majority of the
depositary shares of the series then outstanding. Every holder of a depositary
receipt at the time the amendment becomes effective will be deemed, by
continuing to hold the depositary receipt, to be bound by the deposit agreement
as so amended. Notwithstanding the foregoing, in no event may any amendment
impair the right of any holder of any depositary shares, upon surrender of the
depositary receipts evidencing the depositary shares and subject to any
conditions specified in the deposit agreement, to receive shares of the related
series of preferred stock and any money or other property represented thereby,
except in order to comply with mandatory provisions of applicable law. The
deposit agreement may be terminated by us at any time upon not less than 60
days' prior written notice to the depositary, in which case, on a date that is
not later than 30 days after the date of the notice, the depositary shall
deliver or make available for delivery to holders of depositary shares, upon
surrender of the depositary receipts evidencing the depositary shares, the
number of whole or fractional shares of the related series of preferred stock as
are represented by the depositary shares. The deposit agreement shall
automatically terminate after all outstanding depositary shares have been
redeemed or there has been a final distribution in respect of the related series
of preferred stock in connection with any liquidation, dissolution or winding up
of us and the distribution has been distributed to the holders of depositary
shares.
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CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and the governmental charges
arising solely from the existence of the depositary arrangements. We will pay
the charges of the depositary, including charges in connection with the initial
deposit of the related series of preferred stock and the initial issuance of the
depositary shares and all withdrawals of shares of the related series of
preferred stock, except that holders of depositary shares will pay transfer and
other taxes and governmental charges and any other charges as are expressly
provided in the deposit agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering to us written
notice of its election to do so, and we may at any time remove the depositary.
Any resignation or removal is to take effect upon the appointment of a successor
depositary, which successor depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
MISCELLANEOUS
The depositary will forward to the holders of depositary shares all
reports and communications from us that are delivered to the depositary and
which we are required to furnish to the holders of the related preferred stock.
The depositary's corporate trust office will be identified in the
applicable prospectus supplement. Unless otherwise set forth in the applicable
prospectus supplement, the depositary will act as transfer agent and registrar
for depositary receipts and if shares of a series of preferred stock are
redeemable, the depositary also will act as redemption agent for the
corresponding depositary receipts.
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities either separately or together with, or
upon the conversion of or in exchange for, other securities. The debt securities
may be our unsubordinated obligations, which we refer to as "senior debt
securities," or our subordinated obligations, which we refer to as "subordinated
debt securities." The subordinated debt securities of any series may be our
senior subordinated obligations, subordinated obligations, junior subordinated
obligations or may have such other ranking as will be described in the relevant
prospectus supplement. We may issue any of these types of debt securities in one
or more series.
Our senior debt securities may be issued from time to time under a
senior debt securities indenture. Our subordinated debt securities may be issued
from time to time under a subordinated debt securities indenture. Each of the
senior debt securities indenture and the subordinated debt securities indenture
is referred to individually as an "indenture" and they are referred to
collectively as the "indentures." Each trustee is referred to individually as a
"trustee" and the trustees are collectively referred to as the "trustees."
This section summarizes selected terms of the debt securities that we
may offer. The applicable prospectus supplement and the form of applicable
indenture relating to any particular debt securities offered will describe the
specific terms of that series, which may be in addition to or different from the
general terms summarized in this section. If any particular terms of the debt
securities described in a prospectus supplement differ from any of the terms
described in this prospectus, then the terms described in the applicable
prospectus supplement will supersede the terms described in this prospectus. The
following summary and any description of our debt securities contained in an
applicable prospectus supplement do not describe every aspect of the applicable
indenture or the debt securities. When evaluating the debt securities, you also
should refer to all provisions of the applicable indenture and the debt
securities. The forms of indentures have been filed as exhibits to the
registration statement of which this prospectus is a part. When we refer to
"Matria," "we," "us" or "our" in this section or when we otherwise refer to
ourselves in this section, we mean Matria Healthcare, Inc., excluding, unless
otherwise expressly stated or the context requires, our subsidiaries.
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GENERAL
We can issue an unlimited amount of debt securities under the
indentures. However, certain of our existing or future debt agreements may limit
the amount of debt securities we may issue. We can issue debt securities from
time to time and in one or more series as determined by us. In addition, we can
issue debt securities of any series with terms different from the terms of debt
securities of any other series and the terms of particular debt securities
within any series may differ from each other, all without the consent of the
holders of previously issued series of debt securities.
The applicable prospectus supplement relating to the series of debt
securities will describe the specific terms of the debt securities being
offered, including, where applicable, the following:
o the title and series designation of the series of debt
securities and whether the debt securities of the series will
be senior debt securities or subordinated debt securities;
o any limit on the aggregate principal amount of debt securities
of the series;
o the price or prices at which the debt securities of the series
will be issued;
o whether the debt securities of the series will be guaranteed
and the terms of any such guarantees;
o the date or dates on which the principal amount and premium,
if any, are payable;
o the interest rate or rates or the method for calculating the
interest rate, which may be fixed or variable, at which the
debt securities of the series will bear interest, if any, the
date or dates from which interest will accrue and the interest
payment date on which interest will be payable, subject to our
right, if any, to defer or extend an interest payment date and
the duration of that deferral or extension;
o the date or dates on which interest, if any, will be payable
and the record dates for payment of interest;
o the place or places where the principal and premium, if any,
and interest, if any, will be payable and where the debt
securities of the series can be surrendered for transfer,
conversion or exchange;
o our right, if any, to redeem the debt securities and the terms
and conditions upon which the debt securities of the series
may be redeemed, in whole or in part;
o any mandatory or optional sinking fund or analogous
provisions;
o if the debt securities of the series will be secured, any
provisions relating to the security provided;
o whether the debt securities of the series are convertible or
exchangeable into other debt or equity securities, and, if so,
the terms and conditions upon which such conversion or
exchange will be effected;
o whether any portion of the principal amount of the debt
securities of the series will be payable upon declaration or
acceleration of the maturity thereof pursuant to an event of
default;
o whether the debt securities of the series, in whole or any
specified part, will not be defeasible pursuant to the
applicable indenture and, if other than by an officers'
certificate, the manner in which any election by us to defease
the debt securities of the series will be evidenced;
o any deletions from, modifications of or additions to the
events of default or our covenants pertaining to the debt
securities of the series;
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o if other than U.S. dollars, the currency or currencies,
including composite currencies, of payment of principal of,
premium, if any, and interest, if any, on the debt securities
of the series and whether the debt securities of the series
may be satisfied and discharged other than as provided in the
applicable indenture;
o any terms applicable to debt securities of any series issued
at an issue price below their stated principal amount,
including the issue price thereof and the rate or rates at
which the original issue discount will accrue;
o whether the debt securities of the series are to be issued or
delivered (whether at the time of original issuance or at the
time of exchange of a temporary security of such series or
otherwise), or any installment of principal or any premium or
interest is to be payable only, upon receipt of certificates
or other documents or satisfaction of other conditions in
addition to those specified in the applicable indenture;
o whether the debt securities of the series are to be issued in
fully registered form without coupons or are to be issued in
the form of one or more global securities in temporary global
form or permanent global form;
o whether the debt securities of the series are to be issued in
registered or bearer form, the terms and conditions relating
the applicable form, including, but not limited to, tax
compliance, registration and transfer procedures and, if in
registered form, the denominations in which we will issue the
registered securities if other than $1,000 or a multiple
thereof and, if in bearer form, the denominations in which we
will issue the bearer securities;
o any special United States federal income tax considerations
applicable to the debt securities of the series;
o any addition to or change in the covenants set forth in the
indenture which apply to the debt securities of the series;
and
o any other terms of the debt securities of the series not
inconsistent with the provisions of the applicable indenture.
The prospectus supplement relating to any series of subordinated debt
securities being offered also will describe the subordination provisions
applicable to that series, if different from the subordination provisions
described in this prospectus. In addition, the prospectus supplement relating to
a series of subordinated debt will describe our rights, if any, to defer
payments of interest on the subordinated debt securities by extending the
interest payment period.
Debt securities may be issued as original issue discount securities to
be sold at a discount below their principal amount or at a premium above their
principal amount. In the event of an acceleration of the maturity of any
original issue discount security, the amount payable to the holder upon
acceleration will be determined in the manner described in the applicable
prospectus supplement.
The above is not intended to be an exclusive list of the terms that may
be applicable to any debt securities and we are not limited in any respect in
our ability to issue debt securities with terms different from or in addition to
those described above or elsewhere in this prospectus, provided that the terms
are not inconsistent with the applicable indenture. Any applicable prospectus
supplement also will describe any special provisions for the payment of
additional amounts with respect to the debt securities.
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GUARANTEES
Debt securities may be guaranteed by certain of our domestic
subsidiaries, if so provided in the applicable prospectus supplement. The
prospectus supplement will describe the terms of any guarantees, including,
among other things, the method for determining the identity of the guarantors
and the conditions under which guarantees will be added or released. Any
guarantees will be joint and several obligations of the guarantors. The
obligations of each guarantor under its guarantee will be limited as necessary
to prevent that guarantee from constituting a fraudulent conveyance or
fraudulent transfer under applicable law.
SUBORDINATION PROVISIONS RELATING TO SUBORDINATED DEBT
Debt securities may be subject to contractual subordination provisions
contained in the subordinated debt securities indenture. These subordination
provisions may prohibit us from making payments on the subordinated debt
securities in certain circumstances before a defined class of "senior
indebtedness" is paid in full or during certain periods when a payment or other
default exists with respect to certain senior indebtedness. If we issue
subordinated debt securities, the applicable prospectus supplement relating to
the subordinated debt securities will include a description of the subordination
provisions and the definition of senior indebtedness that apply to the
subordinated debt securities.
If the trustee under the subordinated debt indenture or any holder of
the series of subordinated debt securities receives any payment or distribution
that is prohibited under the subordination provisions, then the trustee or the
holders will have to repay that money to the holders of senior indebtedness.
Even if the subordination provisions prevent us from making any payment
when due on the subordinated debt securities of any series, we will be in
default on our obligations under that series if we do not make the payment when
due. This means that the trustee under the subordinated debt indenture and the
holders of that series can take action against us, but they will not receive any
money until the claims of the holders of senior indebtedness have been fully
satisfied.
Unless otherwise indicated in an applicable prospectus, if any series
of subordinated debt securities is guaranteed by certain of our subsidiaries,
then the guarantee will be subordinated to the senior indebtedness of such
guarantor to the same extent as the subordinated debt securities are
subordinated to the senior indebtedness.
CONVERSION AND EXCHANGE RIGHTS
The debt securities of a series may be convertible into or exchangeable
for any of our other securities, if at all, according to the terms and
conditions of an applicable prospectus supplement. Such terms will include the
conversion or exchange price and any adjustments thereto, the conversion or
exchange period, provisions as to whether conversion or exchange will be
mandatory, at our option or at the option of the holders of that series of debt
securities and provisions affecting conversion or exchange in the event of the
redemption of that series of debt securities.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The debt securities of a series may be issued as registered securities,
as bearer securities (with or without coupons attached) or as both registered
securities and bearer securities. Debt securities of a series may be issuable in
whole or in part in the form of one or more global debt securities, as described
below under "Global Debt Securities." Unless otherwise indicated in an
applicable prospectus supplement, registered securities will be issuable in
denominations of $1,000 and integral multiples thereof.
Registered securities of any series will be exchangeable for other
registered securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. Debt securities may be presented
for exchange as provided above, and unless otherwise indicated in an applicable
prospectus supplement, registered securities may be presented for registration
of transfer, at the office or agency designated by us as registrar or
co-registrar with respect to any series of debt securities, without service
charge and upon payment of any taxes, assessments or other governmental charges
as described in the applicable indenture. The transfer or exchange will be
effected on the books of the registrar or any other transfer agent appointed by
us upon the registrar or transfer
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agent, as the case may be, being satisfied with the documents of title and
identity of the person making the request. We intend to initially appoint the
trustee as registrar and the name of any different or additional registrar
designated by us with respect to the debt securities of any series will be
included in the applicable prospectus supplement. If a prospectus supplement
refers to any transfer agents (in addition to the registrar) designated by us
with respect to any series of debt securities, we may at any time rescind the
designation of any transfer agent or approve a change in the location through
which any transfer agent acts, except that, if debt securities of a series are
issuable only as registered securities, we will be required to maintain a
transfer agent in each place of payment for that series. We may at any time
designate additional transfer agents with respect to any series of debt
securities.
In the event of any redemption of debt securities of any series, we
will not be required to (i) issue, register the transfer of or exchange debt
securities of that series during a period beginning at the opening of business
15 days before any selection of debt securities of that series to be redeemed
and ending at the close of business on the day of mailing of the relevant notice
of redemption and (ii) register the transfer of or exchange any registered
security, or portion thereof, called for redemption, except the unredeemed
portion of any registered security being redeemed in part.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable prospectus supplement,
payment of principal of, premium, if any, and interest, if any, on registered
securities will be made at the office of the paying agent or paying agents
designated by us from time to time, except that at our option, payment of
principal and premium, if any, or interest also may be made by wire transfer to
an account maintained by the payee. Unless otherwise indicated in an applicable
prospectus supplement, payment of any installment of interest on registered
securities will be made to the person in whose name the registered security is
registered at the close of business on the regular record date for the interest
payment.
Unless otherwise indicated in an applicable prospectus supplement, the
trustee will be designated as our sole paying agent for payments with respect to
debt securities which are issuable solely as registered securities. Any paying
agents outside the United States and any other paying agents in the United
States initially designated by us for any series of debt securities will be
named in an applicable prospectus supplement. We may at any time designate
additional paying agents or rescind the designation of any paying agent or
approve a change in the office through which any paying agent acts, except that,
if debt securities of a series are issuable only as registered securities, we
will be required to maintain a paying agent in each place of payment for that
series.
All monies paid by us to a paying agent for the payment of principal
of, premium, if any, or interest, if any, on any debt security which remains
unclaimed at the end of two years after that principal or interest will have
become due and payable will be repaid to us, and the holder of the debt security
or any coupon will thereafter look only to us for payment of those amounts.
GLOBAL DEBT SECURITIES
The debt securities of a series may be issued in whole or in part in
global form. A global debt security will be deposited with, or on behalf of, a
depositary, which will be identified in an applicable prospectus supplement. A
global debt security may be issued in either registered or bearer form and in
either temporary or permanent form. A global debt security may not be
transferred except as a whole to the depositary for the debt security or to a
nominee or successor of the depositary. If any debt securities of a series are
issuable in global form, the applicable prospectus supplement will describe the
circumstances, if any, under which beneficial owners of interests in a global
debt security may exchange their interests for definitive debt securities of
that series of like tenor and principal amount in any authorized form and
denomination, the manner of payment of principal of, premium, if any, and
interest, if any, on the global debt securities and the specific terms of the
depositary arrangement with respect to any global debt security.
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COVENANTS
Except as otherwise set forth in an applicable prospectus supplement,
so long as any debt securities of a series are outstanding, we will furnish to
the holders of debt securities of that series, within the time periods specified
in the rules and regulations of the SEC, (a) our reports on Forms 10-Q and 10-K,
including a Management's Discussion and Analysis of Financial Condition and
Results of Operations and, with respect to the annual information only, a report
on the audited financial statements by our certified independent accountants and
(b) all current reports on Form 8-K. We also will file a copy of all of the
information and reports referred to in clauses (a) and (b) above with the SEC
for public availability within the time periods specified in the SEC's rules and
regulations (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request.
Any additional covenants with respect to any series of debt securities
will be set forth in the applicable prospectus supplement. Unless otherwise
indicated in an applicable prospectus supplement, the indentures do not include
covenants restricting our ability to enter into a highly leveraged transaction,
including a reorganization, restructuring, merger or similar transaction
involving us that may adversely affect the holders of the debt securities, if
the transaction is a permissible consolidation, merger or similar transaction.
In addition, unless otherwise specified in an applicable prospectus supplement,
the indentures do not afford the holders of the debt securities the right to
require us to repurchase or redeem the debt securities in the event of a highly
leveraged transaction. See "Merger, Consolidation and Sale of Assets."
MERGER, CONSOLIDATION AND SALE OF ASSETS
Except as otherwise set forth in an applicable prospectus supplement,
we may not, directly or indirectly, (i) consolidate with or merge into any other
person (whether or not we are the surviving corporation) or (ii) sell, assign,
transfer, convey or otherwise dispose of all or substantially all of our
properties and assets, unless (a) either (x) we are the continuing corporation,
or (y) the person formed by or surviving any such consolidation or merger (if
other than us) or to which such sale, assignment, transfer, conveyance or
disposition will have been made is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia and
that person assumes all of our obligations under the debt securities of such
series and the indenture relating thereto pursuant to agreements reasonably
satisfactory to the applicable trustee; and (b) any other conditions specified
in the applicable prospectus supplement.
In addition, we may not, directly or indirectly, lease all or
substantially all of our properties or assets in one or more related
transactions to any other person. This "Merger, Consolidation and Sale of
Assets" covenant will not apply to a sale, assignment, transfer, conveyance or
other disposition of assets between or among us and any guarantors, if
applicable.
EVENTS OF DEFAULT AND REMEDIES
Under each indenture, unless otherwise specified with respect to a
series of debt securities, the following events will constitute an event of
default with respect to any series of debt securities:
o default for 30 days in the payment when due of any interest on
any debt securities of that series;
o default in payment when due of the principal of, or premium,
if any, on any debt security of that series;
o failure to comply with the provisions described under the
caption "Merger, Consolidation or Sale of Assets;"
o failure for 60 days after notice to comply with any of the
other agreements in the indenture;
o except as permitted by the indenture, if debt securities of a
series are guaranteed, any guarantee shall be held in any
final, non-appealable judicial proceeding to be unenforceable
or invalid or shall cease for any reason to be in full force
and effect or any guarantor, or any person acting on behalf of
any
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guarantor, shall deny, or disaffirm its obligations under its
guarantee (unless such guarantor could be released from its
guarantee in accordance with the applicable terms of the
indenture);
o certain events of bankruptcy or insolvency described in the
indenture with respect to us or any of our Significant
Subsidiaries; and
o any other event of default applicable to the series of debt
securities and set forth in the applicable prospectus
supplement.
Each indenture provides that in the case of an event of default arising
from certain events of bankruptcy or insolvency relating to us with respect to a
series of debt securities, all outstanding debt securities of that series will
become due and payable immediately without further action or notice. If any
other event of default occurs and is continuing, the trustee or the holders of
at least 25% in principal amount of the then outstanding debt securities of that
series may declare all the debt securities of that series to be due and payable
immediately.
Holders of the debt securities of a series may not enforce the
indenture or the debt securities of that series except as provided in the
indenture. Subject to certain limitations, holders of a majority in principal
amount of the then outstanding debt securities of a series may direct the
trustee in its exercise of any trust or power. The trustee may withhold from
holders of the debt securities of a series notice of any continuing default or
event of default if it determines that withholding notice is in their interest,
except a default or event of default relating to the payment of principal or
interest.
Each indenture provides that we are required to deliver to the trustee
annually a statement regarding compliance with the indenture. Upon becoming
aware of any default or event of default, we are required to deliver to the
trustee a statement specifying such default or event of default.
The holders of a majority in aggregate principal amount of the debt
securities of a series then outstanding by notice to the trustee may on behalf
of the holders of all of the debt securities of that series waive any existing
default or event of default and its consequences under the indenture except a
continuing default or event of default in the payment of interest or premium on,
or the principal of, the debt securities of that series.
Such limitations do not apply, however, to a suit instituted by a
holder of any debt security for the enforcement of the payment of the principal
of, premium, if any, and interest in respect of a debt security on the date
specified for payment in the debt security. Unless otherwise specified with
respect to a series of debt securities, the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities of that
series may, on behalf of the holders of the debt securities of any series, waive
any past defaults under the applicable indenture, other than (i) a default in
any payment of the principal of, and premium, if any, or interest on, any debt
security of the series or (ii) any default in respect of the covenants or
provisions in the applicable indenture which may not be modified without the
consent of the holder of each outstanding debt security of the series affected.
For purposes of this section, "Significant Subsidiary" means any
subsidiary that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
Regulation is in effect on the date hereof.
AMENDMENT, SUPPLEMENT AND WAIVER
Each indenture permits us and the applicable trustee, with the consent
of the holders of at least a majority in aggregate principal amount of the
outstanding debt securities of the series affected by the supplemental
indenture, to execute a supplemental indenture to add provisions to, or change
in any manner or eliminate any provisions of, the indenture with respect to that
series of debt securities or modify in any manner the rights of the holders of
the debt securities of that series and any related coupons under the applicable
indenture. However, the supplemental indenture will not, without the consent of
the holder of each outstanding debt security of that series affected thereby:
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o change the stated maturity of the principal of, or any
installment of principal or interest on, the debt securities
of that series or any premium payable upon redemption thereof;
o reduce the principal amount of, or premium, if any, or the
rate of interest on, the debt securities of that series;
o change the place or currency of payment of principal and
premium, if any, or interest, if any, on the debt securities
of that series;
o impair the right to institute suit for the enforcement of any
payment after the stated maturity date on any debt securities
of that series, or in the case of redemption, on or after the
redemption date;
o reduce the principal amount of outstanding debt securities of
that series necessary to modify or amend or waive compliance
with any provisions of the indenture;
o release any applicable guarantor from any of its obligations
under its guarantee or the indenture, except in accordance
with the indenture;
o modify the foregoing amendment and waiver provisions, except
(i) to increase the percentage in principal amount of
outstanding debt securities of any series necessary for such
actions or (ii) to provide that certain other provisions of
the indenture cannot be modified or waived without the consent
of the holder of each debt security of a series affected
thereby; and
o change such other matters as may be specified in an applicable
prospectus supplement for any series of debt securities.
The indentures also permit us, the guarantors, if any, and the
applicable trustee to execute a supplemental indenture without the consent of
the holders of the debt securities:
o to cure any ambiguity, defect or inconsistency;
o to provide for uncertificated debt securities in addition to
or in place of certificated debt securities;
o to provide for the assumption of our obligations or, if
applicable, a guarantor's obligations to holders of debt
securities of a series in the case of a merger or
consolidation or sale of all or substantially all of our
assets or, if applicable, a guarantor's assets;
o to make any change that would provide any additional rights or
benefits to the holders of debt securities of a series or that
does not adversely affect the legal rights under the indenture
of any such holder;
o to comply with the requirements of the SEC in order to effect
or maintain the qualification of the indenture under the Trust
Indenture Act;
o to add a guarantor under the indenture;
o to evidence and provide the acceptance of the appointment of a
successor trustee under the applicable indenture;
o to mortgage, pledge, hypothecate or grant a security interest
in favor of the trustee for the benefit of the holders of debt
securities of any series as additional security for the
payment and performance of our or any applicable guarantor's
obligations under the applicable indenture, in any property or
assets;
o to add to, change or eliminate any provisions of the
applicable indenture (which addition, change or elimination
may apply to one or more series of debt securities), provided
that, any such addition,
26
change or elimination (A) shall neither (i) apply to any debt
security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the holders of such
debt securities with respect to such provisions or (B) shall
become effective only when there is no such outstanding debt
securities of such series; and
o to establish the form and terms of debt securities of any
series as permitted by the indenture.
The holders of a majority in principal amount of outstanding debt
securities of any series may waive compliance with certain restrictive covenants
and provisions of the applicable indenture.
DISCHARGE
Unless otherwise indicated in an applicable prospectus supplement, each
indenture provides that we may satisfy and discharge our obligations thereunder
with respect to the debt securities of any series, when either:
o all debt securities of that series that have been
authenticated, except lost, stolen or destroyed debt
securities of that series that have been replaced or paid and
debt securities of that series for whose payment money has
been deposited in trust and thereafter repaid to us, have been
delivered to the trustee for cancellation; or
o all debt securities of that series that have not been
delivered to the trustee for cancellation have become due and
payable by reason of the mailing of a notice of redemption or
otherwise or will become due and payable within one year and
we or, if applicable, any guarantor has irrevocably deposited
or caused to be deposited with the trustee as trust funds in
trust solely for the benefit of the holders of debt securities
of that series, cash, non-callable U.S. government securities,
or a combination thereof, in amounts as will be sufficient
without consideration of any reinvestment of interest, to pay
and discharge the entire indebtedness on the debt securities
of that series not delivered to the trustee for cancellation
for principal, premium, if any, and accrued interest to the
date of maturity or redemption.
DEFEASANCE
Unless otherwise indicated in an applicable prospectus supplement, each
indenture provides that we may, at our option and at any time, elect to have all
of our obligations discharged with respect to the outstanding debt securities of
a series and, if applicable, all obligations of the guarantors discharged with
respect to their guarantees ("legal defeasance") except for:
o the rights of holders of the outstanding debt securities of
that series to receive payments in respect of the principal
of, or premium or interest, if any, on the debt securities of
that series when such payments are due from the trust referred
to below;
o our obligations with respect to the debt securities of that
series concerning issuing temporary securities, registration
of securities, mutilated, destroyed, lost or stolen securities
and the maintenance of an office or agency for payment and
money for security payments held in trust;
o the rights, powers, trusts, duties and immunities of the
applicable trustee, our obligations and, if applicable, the
guarantor's obligations in connection therewith; and
o the legal defeasance provisions of the indenture.
In addition, we may, at our option and at any time, elect to have our
obligations and, if applicable, the guarantors' obligations released with
respect to certain covenants in respect of the debt securities of any series
that are described in the indenture ("covenant defeasance") and thereafter any
omission to comply with those covenants will not constitute a default or event
of default with respect to the debt securities of that series. In the event
covenant defeasance occurs, certain events (not including non-payment,
bankruptcy, receivership, rehabilitation and
27
insolvency events) described under " -- Events of Default and Remedies" will no
longer constitute an event of default with respect to the debt securities of
that series.
In order to exercise either legal defeasance or covenant defeasance, we
are required to meet specified conditions, including:
o we must irrevocably deposit with the trustee, in trust, for
the benefit of the holders of the debt securities of that
series, cash, non-callable U.S. government securities, or a
combination thereof, in amounts as will be sufficient to pay
the principal of, or premium and interest, if any, on the
outstanding debt securities of that series on the stated
maturity or on the applicable redemption date, as the case may
be;
o in the case of legal defeasance, we have delivered to the
applicable trustee an opinion of counsel reasonably acceptable
to the trustee confirming that (a) we have received from, or
there has been published by, the Internal Revenue Service a
ruling or (b) since the date of the indenture, there has been
a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion of
counsel will confirm that, the holders of the outstanding debt
securities of that series will not recognize income, gain or
loss for federal income tax purposes as a result of such legal
defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as
would have been the case if such legal defeasance had not
occurred; and
o in the case of covenant defeasance, we have delivered to the
trustee an opinion of counsel reasonably acceptable to the
trustee confirming that the holders of the outstanding debt
securities of that series will not recognize income, gain or
loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had
not occurred.
THE TRUSTEES UNDER THE INDENTURES
If a trustee becomes a creditor of ours or any guarantor, the indenture
limits its right to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or otherwise.
Each trustee will be permitted to engage in other transactions with us and/or
the guarantors, if any; however, if any trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue or resign.
The holders of a majority in principal amount of the then outstanding
debt securities of a series will have the right to direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
trustee, subject to certain exceptions. The indenture provides that in case an
event of default occurs and is continuing, a trustee will be required, in the
exercise of its power, to use the degree of care of a prudent person in the
conduct of its own affairs. Subject to such provisions, a trustee will be under
no obligation to exercise any of its rights or powers under the indenture at the
request of any holder of debt securities, unless such holder has offered to the
trustee security and indemnity satisfactory to it against any loss, liability or
expense.
APPLICABLE LAW
The debt securities and the indentures will be governed by and
construed in accordance with the laws of the State of New York.
DESCRIPTION OF WARRANTS
We may issue, either separately or together with other securities,
warrants for the purchase of any of the other types of securities that we may
sell under this prospectus.
This section summarizes the general terms of the warrants that we may
offer. The warrants will be issued under warrant agreements to be entered into
between us and a bank or trust company, as warrant agent. The
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prospectus supplement relating to a particular series of warrants will describe
the specific terms of that series, which may be in addition to or different from
the general terms summarized in this section. The summaries in this section and
the prospectus supplement do not describe every aspect of the warrants. If any
particular terms of a series of warrants described in a prospectus supplement
differ from any of the terms described in this prospectus, then the terms
described in the applicable prospectus supplement will be deemed to supersede
the terms described in this prospectus. When evaluating the warrants, you also
should refer to all the provisions of the applicable warrant agreement, the
certificates representing the warrants and the specific descriptions in the
applicable prospectus supplement. The applicable warrant agreement and warrant
certificates will be filed as exhibits to or incorporated by reference in the
registration statement.
GENERAL
The prospectus supplement will describe the terms of the warrants in
respect of which this prospectus is being delivered as well as the related
warrant agreement and warrant certificates, including the following, where
applicable:
o the principal amount of, or the number of securities, as the
case may be, purchasable upon exercise of each warrant and the
initial price at which the principal amount or number of
securities, as the case may be, may be purchased upon such
exercise;
o the designation and terms of the securities, if other than
common stock, purchasable upon exercise thereof and of any
securities, if other than common stock, with which the
warrants are issued;
o the procedures and conditions relating to the exercise of the
warrants;
o the date, if any, on and after which the warrants, and any
securities with which the warrants are issued, will be
separately transferable;
o the offering price of the warrants, if any;
o the date on which the right to exercise the warrants will
commence and the date on which that right will expire;
o a discussion of any special United States federal income tax
considerations applicable to the warrants;
o whether the warrants represented by the warrant certificates
will be issued in registered or bearer form, and, if
registered, where they may be transferred and registered;
o call provisions of the warrants, if any;
o antidilution provisions of the warrants, if any; and
o any other material terms of the warrants.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase for cash that
principal amount of or number of securities, as the case may be, at the exercise
price set forth in, or to be determined as set forth in, the applicable
prospectus supplement relating to the warrants. Unless otherwise specified in
the applicable prospectus supplement, warrants may be exercised at the corporate
trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement at any time up to 5:00 p.m. Eastern Standard
Time on the expiration date set forth in the applicable prospectus supplement.
After 5:00 p.m. Eastern Standard Time on the expiration date, unexercised
warrants will become void. Upon receipt of payment and the warrant certificate
properly completed and duly
29
executed, we will, as soon as practicable, issue the securities purchasable upon
exercise of the warrant. If less than all of the warrants represented by the
warrant certificate are exercised, a new warrant certificate will be issued for
the remaining amount of warrants.
NO RIGHTS OF SECURITY HOLDER PRIOR TO EXERCISE
Prior to the exercise of their warrants, holders of warrants will not
have any of the rights of holders of the securities purchasable upon the
exercise of the warrants and will not be entitled to:
o in the case of warrants to purchase debt securities, payments
of principal of, premium, if any, or interest, if any, on the
debt securities purchasable upon exercise; or
o in the case of warrants to purchase equity securities, the
right to vote or to receive dividend payments or similar
distributions on the securities purchasable upon exercise.
EXCHANGE OF WARRANT CERTIFICATES
Warrant certificates will be exchangeable for new warrant certificates
of different denominations at the corporate trust office of the warrant agent or
any other office indicated in the applicable prospectus supplement.
DESCRIPTION OF UNITS
We may, from time to time, issue units comprised of one or more of the
other securities that may be offered under this prospectus, in any combination.
Each unit will be issued so that the holder of the unit is also the holder of
each security included in the unit. Thus, the holder of a unit will have the
rights and obligations of a holder of each included security. The unit agreement
under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately at any time, or at any time
before a specified date.
The applicable prospectus supplement will describe, among other things,
the units or the securities comprising the units, including whether and under
what circumstances those securities may be held or transferred separately, any
material provisions related to the issuance, payment, settlement, transfer or
exchange of the units or of the securities comprising the units; a discussion of
any special United States federal income tax considerations applicable to the
units; and any material provisions of the governing unit agreement that differ
from those described above.
PLAN OF DISTRIBUTION
We may sell the securities to one or more underwriters for public
offering and sale by them or may sell the securities to investors through agents
or dealers. Any underwriter or agent involved in the offer and sale of the
securities will be named in the applicable prospectus supplement. We also
reserve the right to sell securities directly to investors in those
jurisdictions where we are authorized to do so.
The distribution of securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or from
time to time at market prices prevailing at the time of sale, at prices related
to prevailing market prices or at negotiated prices. We may, from time to time,
authorize underwriters acting as our agents to offer and sell the securities
upon the terms and conditions set forth in any prospectus supplement. In
connection with the sale of the securities, underwriters may be deemed to have
received compensation from us in the form of underwriting discounts or
commissions and may also receive commissions from purchasers of the securities
for whom they may act as agent.
If a dealer is utilized in the sale of the securities in respect of
which this prospectus is delivered, we may sell the securities to the dealer, as
principal. The dealer may then resell the securities to the public at varying
prices to be determined by the dealer at the time of resale.
30
Any underwriting compensation paid by us to underwriters or agents in
connection with the offering of the securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers, will be set
forth in an applicable prospectus supplement. Underwriters, dealers and agents
participating in the distribution of the securities may be deemed to be
underwriters under the Securities Act of 1933, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and commissions under the Securities Act
of 1933. Underwriters, dealers and agents may be entitled under agreements with
us to indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act of 1933, and to reimbursement by
us for certain expenses.
Securities offered may be a new issue of securities with no established
trading market. Any underwriters to which or agents through which these
securities are sold by us for public offering and sale may make a market in
these securities, but such underwriters or agents will not be obligated to do so
and may discontinue any market making at any time without notice. No assurance
can be given as to the liquidity of or the trading market for any such
securities.
If so indicated in an applicable prospectus supplement, we may
authorize dealers acting as our agents to solicit offers by institutions to
purchase the securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on the date or dates stated in the prospectus supplement.
Each delayed delivery contract will be for an amount not less than, and the
aggregate principal amount or offering price of the securities sold pursuant to
delayed delivery contracts will not be less nor more than, the respective
amounts stated in the prospectus supplement. Institutions with which delayed
delivery contracts, when authorized, may be entered into include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and other institutions, but will in all
cases be subject to our approval.
The securities also may be offered and sold, if so indicated in the
prospectus supplement, in connection with a remarketing upon their purchase, in
accordance with a redemption or repayment pursuant to their terms, or otherwise,
by one or more firms ("remarketing firms"), acting as principals for their own
accounts or as our agents. Any remarketing firm will be identified and the terms
of its agreement with us, if any, and its compensation will be described in the
applicable prospectus supplement. Remarketing firms may be deemed to be
underwriters in connection with the securities remarketed by them. Remarketing
firms may be entitled under agreements which may be entered into with us to
indemnification by us against certain liabilities, including liabilities under
the Securities Act of 1933.
In connection with the offering of the securities hereby, certain
underwriters and their affiliates may engage in transactions that stabilize,
maintain or otherwise affect the market price of the applicable securities.
These transactions may include stabilization transactions effected in accordance
with Rule 104 of Regulation M promulgated by the SEC pursuant to which these
persons may bid for or purchase securities for the purpose of stabilizing their
market price. The underwriters in an offering of securities may also create a
"short position" for their account by selling more securities in connection with
the offering than they are committed to purchase from us. In that case, the
underwriters could cover all or a portion of the short position by either
purchasing securities in the open market following completion of the offering of
these securities or by exercising any over-allotment option granted to them by
us. In addition, the managing underwriter may impose "penalty bids" under
contractual arrangements with other underwriters, which means that they can
reclaim from an underwriter for the account of the other underwriters, the
selling concessions for the securities that are distributed in the offering but
subsequently purchased for the account of the underwriters in the open market.
Any of the transactions described above in this paragraph or any comparable
transactions that are described in any accompanying prospectus supplement may
result in the maintenance of the price of the securities at a level above that
which might otherwise prevail in the open market. None of the transactions
described in this paragraph or in any accompanying prospectus supplement are
required to be taken by any underwriters and, if they are undertaken, may be
discontinued at any time.
One or more of the underwriters, dealers or agents, and/or one or more
of their respective affiliates, may be a lender under our credit agreements and
may provide other commercial banking, investment banking and other services to
us and/or our subsidiaries and affiliates in the ordinary course of business.
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LEGAL MATTERS
Legal matters with respect to the validity of the securities being
offered hereby will be passed upon for us by Troutman Sanders LLP, Atlanta,
Georgia. Carl E. Sanders, one of our directors and the Chairman of Troutman
Sanders LLP, is the beneficial owner of 22,500 shares of our common stock.
EXPERTS
The consolidated financial statements of Matria Healthcare, Inc. and
its subsidiaries as of December 31, 2001 and 2002 and for each of the years in
the three-year period ended December 31, 2002, have been incorporated by
reference herein in reliance upon the report of KPMG LLP, independent
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing. The audit report covering the
December 31, 2002, financial statements refers to the adoption of Statement of
Accounting Standards No. 142, "Accounting for Goodwill and Other Intangible
Assets," effective January 1, 2002.
WHERE YOU CAN FIND MORE INFORMATION
You may obtain from the SEC, through the SEC's web site or at its
public reference facilities described in the following paragraph, a copy of the
registration statement, including exhibits, that we have filed with the SEC to
register the securities offered by this prospectus. The registration statement
may contain additional information about us and the securities that we may offer
that may be important to you.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's Public Reference Room maintained by the SEC at:
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Please call the SEC at 1-800-SEC-0330 for further information on the
public reference room.
Our filings are also available on the SEC's website at
http://www.sec.gov.
This prospectus constitutes part of a registration statement on Form
S-3 that we filed with the SEC under the Securities Act of 1933. As permitted by
the rules and regulations of the SEC, this prospectus omits some of the
information, exhibits and undertakings included in the registration statement.
You may read and copy the information omitted from this prospectus but contained
in the registration statement, as well as the periodic reports and other
information we file with the SEC, at the public reference facilities maintained
by the SEC in Washington, D.C.
32
DOCUMENTS INCORPORATED BY REFERENCE
We have elected to "incorporate by reference" certain information into
this prospectus. By incorporating by reference, we can disclose important
information to you by referring you to another document we have filed separately
with the SEC. The information incorporated by reference is deemed to be part of
this prospectus, except for information incorporated by reference that is
superseded by information contained in this prospectus, any applicable
prospectus supplement or any document we subsequently file with the SEC that is
incorporated or deemed to be incorporated by reference in this prospectus.
Likewise, any statement in this prospectus or any document that is incorporated
or deemed to be incorporated by reference herein will be deemed to have been
modified or superseded to the extent that any statement contained in any
applicable prospectus supplement or any document that we subsequently file with
the SEC that is incorporated or deemed to be incorporated by reference herein
modifies or supersedes that statement. We are incorporating by reference the
following documents that we have previously filed with the SEC (other than
information in such documents that is deemed not to be filed):
(1) our Annual Report on Form 10-K for the fiscal year ended
December 31, 2002;
(2) our Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2003, and June 30, 2003; and
(3) the description of our capital stock contained in the Joint
Proxy Statement/ Prospectus of Healthdyne, Inc. and Tokos
Medical Corporation, our predecessor, filed as part of our
Registration Statement No. 333-00781 on Form S-4 filed with
the SEC February 7, 1996, as amended by Form 8A/A filed with
the SEC October 29, 2001, and as it has been or may be amended
by any amendment or report filed subsequent to the date of
this registration statement for the purposes of updating such
description.
In addition, all documents filed by us after the date of this
prospectus pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and prior to the
termination of the offering made hereby also will be incorporated by reference
in this prospectus (other than information in such documents that is deemed not
to be filed). 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 prospectus 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 contained in this prospectus 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
prospectus.
You may request a copy of the documents incorporated by reference into
this prospectus, other than exhibits to these documents unless such exhibits are
specifically incorporated by reference, at no cost, by writing or telephoning us
at: Matria Healthcare, Inc., Attention: Investor Relations, 1850 Parkway Place,
Marietta, Georgia 30067; (770) 767-4500.
33
PART II. INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The table below sets forth the various expenses and costs incurred by
Matria Healthcare, Inc. in connection with the sale and distribution of the
securities offered hereby. All the amounts shown are estimated except the SEC
registration fee.
SEC registration fee..................................... $ 12,135
Trustees' fees and expenses.............................. $ 25,000
Printing and engraving costs............................. $ 20,000
Accounting fees and expenses............................. $ 40,000
Legal fees and expenses.................................. $ 150,000
Miscellaneous............................................ $ 10,000
Total.................................................... $ 257,135
All of the above items are estimates except the SEC registration fee. All of
such estimated expenses will be borne by us.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware (the "DGCL")
permits a corporation to indemnify officers, directors, employees and agents
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement if such person acted in good faith and in a manner the person
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and with respect to any criminal actions, had no reasonable cause
to believe was unlawful. In the case of an action brought by or in the right of
a corporation, the corporation may indemnify a director, officer, employee or
agent of the corporation against expenses (including attorneys' fees) actually
and reasonably incurred by him or her if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless a court finds that, in view of
all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses as the court shall deem proper. 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.
Our Restated Certificate of Incorporation provides that we shall, to
the fullest extent permitted by law, indemnify our 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 Matria. Our Restated
Certificate of Incorporation limits our directors' liability for monetary
damages to us and our stockholders for breaches of fiduciary duty to the fullest
extent permitted under the DGCL. The DGCL permits Delaware corporations to
include in their certificate of incorporation a provision eliminating or
limiting director liability for monetary damages arising from breaches of
fiduciary duty. The only limitations imposed under the statute are that the
provision may not eliminate or limit a director's liability (i) for breaches of
the director's duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or involving intentional misconduct or known
violations of law, (iii) for the payment of unlawful dividends or unlawful stock
purchases or redemptions or (iv) for transactions in which the director received
an improper personal benefit.
Our Amended Bylaws provide that each person who is involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of Matria, or is or was serving at the request of Matria 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 us to the fullest extent permitted
by the DGCL, as the same exists or may hereafter be
II-1
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 we will indemnify any such
person seeking indemnification in connection with a proceeding initiated by such
person only if such proceeding was authorized by our Board of Directors. The
right to indemnification is a contract right and includes the right to be paid
by Matria 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 us 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. We may provide indemnification to our employees
and agents with the same scope and effect as the foregoing indemnification of
directors and officers.
The indemnification rights conferred by our Restated Certificate of
Incorporation and Amended Bylaws 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. We maintain an
insurance policy on behalf of our directors and officers insuring against
certain liabilities including liabilities arising under the Securities Act.
ITEM 16. EXHIBITS.
The following is a list of all exhibits filed as part of this
registration statement on Form S-3, including those exhibits incorporated in
this registration statement by reference.
Exhibit
Number Description of Exhibits
------- -----------------------
*1.1 Form of Underwriting Agreement
3.1 Restated Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 of Matria's Annual Report on Form
10-K for the year ended December 31, 1995).
3.2 Certificate of Amendment of Restated Certificate of
Incorporation of Matria dated December 5, 2000 (incorporated
by reference to Exhibit 3.4 of Matria's Annual Report on Form
10-K for the year ended December 31, 2000)
3.3 Restated Bylaws of Matria (Incorporated by reference to
Exhibit 3.3 of Matria's Annual Report on Form 10-K for the
fiscal year ended December 31, 2002).
4.1 Amended and Restated Rights Agreement, dated April 27, 1999
between Matria Healthcare, Inc. and SunTrust Bank Atlanta
(incorporated by reference to Exhibit 4 to Matria's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1999).
4.2 Amendment No. 1 to Amended and Restated Rights Agreement,
dated as of October 5, 2001, between Matria Healthcare, Inc.
and SunTrust Bank Atlanta (incorporated by reference to
Exhibit 4(b) to the Company's Form 8-K/A dated October 29,
2001).
*4.3 Form of Indenture relating to the senior debt securities
*4.4 Form of Indenture relating to the subordinated debt
securities
*4.5 Form of warrant agreement
*4.6 Form of senior debt security
*4.7 Form of senior subordinated debt security
II-2
Exhibit
Number Description of Exhibits
------- -----------------------
*4.8 Form of subordinated debt security
*4.9 Form of certificate of designation for preferred stock
*4.10 Form of specimen certificate of common stock
*4.11 Form of specimen certificate for preferred stock
*4.12 Form of warrant certificate
*4.13 Form of warrant agreement
*4.14 Form of depositary agreement
*4.15 Form of depositary receipt
*4.16 Form of unit agreement
*5.1 Opinion of Troutman Sanders LLP
*8.1 Opinion of Troutman Sanders LLP
12.1 Computation of ratio of earnings to fixed charges
23.1 Consent of KPMG LLP
*23.2 Consent of Troutman Sanders LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on the signature page of this
registration statement)
* To be filed by an amendment to this registration statement or as an
exhibit to a document to be incorporated by reference herein in connection with
an offering of the offered securities.
ITEM 17. UNDERTAKINGS.
(a) Undertaking related to Rule 415 offering:
The undersigned registrants hereby undertake:
(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
II-3
deviation from the low or high end 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 a 20% 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 registration statement is on Form S-3, S-8 or F-3 and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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.
(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) Undertaking related to filings incorporating subsequent Securities
Exchange Act of 1934 documents by reference:
The undersigned registrants hereby undertake 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 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) Undertaking related to acceleration of effectiveness:
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions or otherwise,
the registrants have been advised that in the opinion of the SEC 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 a 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, each 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.
(d) Undertaking related to Rule 430A:
The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part
of this registration statement as of the time it was declared effective.
II-4
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(e) Undertaking related to qualifications of trust indentures:
The undersigned registrants hereby undertake to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the Act.
II-5
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-3 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 the 3 day of October,
2003.
Matria Healthcare, Inc.
By: /s/ Parker H. Petit
----------------------------------------
Parker H. Petit
Chairman and Chief Executive Officer
S-1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Parker H. Petit Chairman and Chief Executive
----------------------------------- Officer
Parker H. Petit (Principal Executive Officer)
/s/ Stephen M. Mengert Vice President-Finance and
----------------------------------- Chief Financial Officer
Stephen M. Mengert (Principal Financial Officer)
/s/ David M. Sheffield Vice President and Chief
----------------------------------- Accounting Officer
David M. Sheffield (Principal Accounting Officer)
/s/ Frederick E. Cooper Director
-----------------------------------
Frederick E. Cooper
/s/ Guy W. Millner Director
-----------------------------------
Guy W. Millner
/s/ Carl E. Sanders Director
-----------------------------------
Carl E. Sanders
Director
-----------------------------------
Thomas S. Stribling
/s/ Donald W. Weber Director
-----------------------------------
Donald W. Weber
/s/ Morris S. Weeden Director
-----------------------------------
Morris S. Weeden
/s/ Frederick P. Zuspan, M.D. Director
-----------------------------------
Frederick P. Zuspan, M.D.
S-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Diabetes Acquisition, Inc.
By: /s/ Parker H. Petit
------------------------------------
Parker H. Petit
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Parker H. Petit President and Director
---------------------------------------- (Principal Executive Officer)
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
---------------------------------------- Officer and Principal Accounting
Yvonne V. Scoggins Officer)
S-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Diabetes Management Solutions, Inc.
By: /s/ Parker H. Petit
----------------------------------------
Parker H. Petit
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Parker H. Petit President and Director
------------------------------------------ (Principal Executive Officer)
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
------------------------------------------ Officer and Principal Accounting
Yvonne V. Scoggins Officer)
S-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Gainor Medical Acquisition Company, Inc.
By: /s/ Parker H. Petit
---------------------------------------
Parker H. Petit
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Parker H. Petit President and Director
---------------------------------------- (Principal Executive Officer)
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
---------------------------------------- Officer and Principal Accounting
Yvonne V. Scoggins Officer)
S-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Diabetes Self Care, Inc.
By: /s/ Eugene E. Jennings
---------------------------------------
Eugene E. Jennings
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Eugene E. Jennings President (Principal Executive Officer)
----------------------------------------
Eugene E. Jennings
/s/ Parker H. Petit Director
----------------------------------------
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial Officer
---------------------------------------- and Principal Accounting Officer)
Yvonne V. Scoggins
S-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Matria Laboratories, Inc.
By: /s/ Eugene E. Jennings
----------------------------------------
Eugene E. Jennings
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Eugene E. Jennings President (Principal Executive Officer)
------------------------------
Eugene E. Jennings
/s/ Parker H. Petit Director
------------------------------
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
------------------------------ Officer and Principal Accounting
Yvonne V. Scoggins Officer)
S-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Facet Technologies, LLC
By: /s/ William C. Taylor
---------------------------------------
William C. Taylor
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ William C. Taylor President (Principal Executive Officer)
--------------------------------------
William C. Taylor
Matria Healthcare, Inc.
/s/ Parker H. Petit Managing Member
--------------------------------------
By: Parker H. Petit
Its: Chairman and
Chief Executive Officer
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
-------------------------------------- Officer and Principal Accounting
Yvonne V. Scoggins Officer)
S-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Alpharetta,
Georgia on October 3, 2003.
MarketRing.com, Inc.
By: /s/ Robert W. Kelley
----------------------------------------
Robert W. Kelley
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Robert W. Kelley President (Principal Executive Officer)
---------------------------------
Robert W. Kelley
/s/ Parker H. Petit Director
---------------------------------
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
--------------------------------- Officer and Principal Accounting
Yvonne V. Scoggins Officer)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Matria of New York, Inc.
By: /s/ Parker H. Petit
----------------------------------------
Parker H. Petit
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Parker H. Petit President and Director
------------------------------------------ (Principal Executive Officer)
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
------------------------------------------ Officer and Principal Accounting
Yvonne V. Scoggins Officer)
S-10
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Matria Healthcare of Illinois, Inc.
By: /s/ Parker H. Petit
----------------------------------------
Parker H. Petit
President
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Parker H. Petit President and Director
------------------------------------------ (Principal Executive Officer)
Parker H. Petit
/s/ Yvonne V. Scoggins Treasurer (Principal Financial
------------------------------------------ Officer and Principal Accounting
Yvonne V. Scoggins Officer)
S-11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Marietta,
Georgia on October 3, 2003.
Quality Oncology, Inc.
By: /s/ Parker H. Petit
----------------------------------------
Parker H. Petit
Chairman
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Parker H. Petit and
Roberta L. McCaw and each of them, his or her true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution for him or her and
in his or her name, place and stead, in any and all capacities to sign any and
all amendments (including post-effective amendments) to the 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 agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that each said attorneys-in-fact and agents
or any of them or their or his or her 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 below on October 3, 2003 by the following
persons in the capacities indicated.
SIGNATURE CAPACITY
--------- --------
/s/ Parker H. Petit Chairman and Director
-------------------------------------- (Principal Executive Officer)
Parker H. Petit
/s/ Stephen M. Mengert Vice President, Treasurer and
-------------------------------------- Director (Principal Financial
Stephen M. Mengert Officer and Principal Accounting
Officer)
S-12